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Hibbens v. Rue

Court of Appeals of Tennessee, Knoxville

June 12, 2015

RICHARD LEE HIBBENS
v.
ASHLEY ELIZABETH RUE

Session Date April 14, 2015.

Direct Appeal from the Chancery Court for Bradley County No. 2010-CV-174 Jerri Bryant, Chancellor

Randy Sellers, Cleveland, Tennessee, for the appellant, Richard Lee Hibbens.

Philip M. Jacobs, Cleveland, Tennessee, for the appellee, Ashley Elizabeth Rue.

Brandon O. Gibson, J., delivered the opinion of the court, in which John W. McClarty, J., and Thomas R. Frierson, II, J., joined.

OPINION

BRANDON O. GIBSON, JUDGE.

I. Facts & Procedural History

The child at issue in this case, Logan, was born in February 2010. His parents were unmarried and filed a joint petition to establish parentage in May 2010 in the chancery court of Bradley County. On May 27, 2010, the chancery court entered an order establishing parentage and approving a permanent parenting plan submitted by the parties. The order designated the child's mother, Ashley Rue ("Mother"), as the primary residential parent. It provided that the child's father, Richard Hibbens ("Father"), would be the alternate residential parent and pay child support in the sum of $300 per month. This amount was calculated based on Mother having 250 days of parenting time with the child and Father having 115 days. Father was serving in the United States Marine Corps at the time, but apparently he and Mother both resided in Cleveland, Tennessee.

The parties and their attorneys attended mediation on November 9, 2011, and they reached an agreement as to various issues. On January 27, 2012, the chancery court entered an order approving and incorporating the parties' mediated agreement. The mediated agreement addressed parenting time and other matters and contained the following paragraph addressing child support:

Child Support: To be modified by attorneys according to state guidelines. W-2 forms were exchanged in mediation and the parties have agreed to exchange year to date records.

Despite this provision, the child support obligation was not immediately modified.

Approximately one year after the parties' mediated agreement, on November 30, 2012, Father filed an application for emergency relief in the chancery court. According to the petition, the parties were still operating under the January 27, 2012 order incorporating the mediated agreement. However, since that time, Father had been deployed to Afghanistan and was not expected to return to the United States until May 2013. Father's petition was limited to issues regarding his long-distance communication with two-year-old Logan and visitation between Logan and Father's family during the upcoming holidays. The parties entered an agreed order resolving these issues on December 18, 2012. The agreed order provided that when Father returned to the United States, the court's previous order would remain in effect.

On April 23, 2013, apparently in anticipation of Father's return, Mother filed a petition seeking an order retroactively setting child support pursuant to the November 9, 2011 mediation agreement incorporated into the January 27, 2012 order. Basically, Mother asked the court to set child support in accordance with the child support guidelines retroactive to November 9, 2011. Mother also asked the court to order the parties to attend mediation and to enter a permanent parenting plan based on the parties' current circumstances.

Two days later, Father filed an application for emergency relief or for a prompt hearing, acknowledging that the parties were still operating under the January 27, 2012 order incorporating the mediated agreement. He asked the court to instruct the parties as to "how to proceed" on parenting time pending further mediation. After an unsuccessful attempt at mediation, the trial court entered an order on parenting time but reserved all other issues for the final hearing.

The remaining matters were tried on August 26, 2013. At the end of the hearing, the trial judge announced her ruling from the bench. However, the record before us does not contain a statement of the evidence or a transcript from the hearing or the bench ruling. Prior to the entry of any written order, on October 15, 2013, Mother filed three motions. She filed a "Motion to Enter Judgment, " asking the court to enter an order containing findings of fact and conclusions of law and adopting a parenting plan. According to this motion, the parties' attorneys could not agree on the content of an order accurately reflecting the court's oral ruling. Mother asked the trial court to adopt the order and parenting plan prepared by her counsel. Mother also filed a "Motion to Alter or Amend, " asking the trial court to modify its ruling regarding a parenting plan provision relating to childcare. Finally, Mother filed a "Motion" asking the trial court to alter its prospective child support ruling, either by finding Father voluntarily underemployed for leaving the military or by exercising its discretion to deviate from the child support guidelines, which, apparently, required Mother to pay child support to Father based on their current circumstances.

Father filed responses to each of Mother's three motions. As relevant to this appeal, he contended that the proposed order prepared by his attorney most accurately reflected the court's oral ruling regarding retroactive child support. According to Father, the trial judge ruled that Father had demonstrated logical and legitimate reasons as to why he was unable to exercise his parenting time. Therefore, according to Father, the judge decided to use the "actual day count" to calculate retroactive child support. Father interpreted this language to mean that the court intended to use "the actual day count agreed to by the parties, not the actual days that he was able to visit." (Emphasis added.) Father suggested that his interpretation was reasonable considering the court's finding regarding the legitimacy of ...


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