Session October 23, 2014
Appeal from the Chancery Court for Sumner County No. 2011-DM-178 Tom E. Gray, Chancellor
Russ Heldman, Franklin, Tennessee, for the appellant, Jennifer Inez Clark.
Mary Arline Evans, Laura Yancey Goodall, and Charles Ralls Niewold, Nashville, Tennessee, for the appellee, Bryan Dewayne Clark.
W. Neal McBrayer, J., delivered the opinion of the Court, in which Richard H. Dinkins and Brandon O. Gibson, JJ. joined.
W. NEAL McBRAYER, JUDGE
I. Factual and Procedural Background
Bryan Dewayne Clark ("Father") and Jennifer Inez Clark ("Mother") were divorced in March 2012. They are the parents of two young children. The March 2012 Permanent Parenting Plan designated Mother as the primary residential parent and assigned Mother 286 days of parenting time and Father 79 days of parenting time. The parties had joint decision-making authority for the children. Under the 2012 parenting plan, Father paid Mother $1, 003.00 in monthly child support.
Mother was arrested on December 7, 2012, for driving under the influence and possession of controlled substances. On December 27, 2012, Father filed a petition for change of custody, requesting that the court grant him temporary custody of the children, designate him as the primary residential parent, and limit Mother's parenting time to supervised visitation. On December 30, 2012, Mother was arrested a second time for driving under the influence; on this occasion, the parties' two children were in her vehicle.
Over the next eight months, the parties entered into a temporary parenting plan and agreed orders. The temporary parenting plan, approved on January 14, 2013, gave Father primary responsibility for the children. Mother's parenting time was limited to: Friday after school to Sunday at 6:00 p.m every other weekend, and every Wednesday after school to Thursday morning. Mother was required to reside with her parents in order to exercise her parenting time. Father worked out-of-town Monday through Thursday, but his parents provided child care while he was working. Mother was prohibited from driving with the children and all transportation was to be provided by Mother's parents. Finally, Mother was required to pay Father $273.00 in monthly child support.
The court held a hearing on Father's petition for change of custody on August 1, 2013. On August 8, 2013, the court entered a new parenting plan. Father was granted 275 days of parenting time and designated as the primary residential parent. Mother was granted 90 days of parenting time. Father was given sole decision-making authority for the children, and Mother was ordered to pay $273.00 to Father in monthly child support. The court subsequently issued a written order on August 14, 2013, finding that there had been a substantial and material change in circumstances since the prior custody order and designating Father as the primary residential parent. The court's order stated, in pertinent part:
IT IS, THEREFORE, ORDERED & ADJUDGED BY THE COURT that the Court finds that there exists a substantial and material change in circumstances since the last Permanent Parenting Plan in 2011, and after reviewing the relevant factors, the Court finds it is in the children's best interest to designate the Father, Bryan Dewayne Clark, as primary residential parent.
IT IS FURTHER ORDERED & ADJUDGED BY THE COURT that the Court approves the Father's Permanent Parenting Plan which will be entered by the Court.
On September 3, 2013, Mother filed a motion to alter or amend the August 8, 2013 parenting plan. In an order entered on October 30, 2013, the court altered the parenting plan by adding a mutual right of first refusal for parenting time. The right of first refusal did not apply to designated holidays and vacations. However, it applied at all other times when the other parent was at work, traveling to and from work, or personally unavailable to care for the children "without delegating ...