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In re Gunner F.

Court of Appeals of Tennessee, Nashville

June 6, 2017

IN RE GUNNER F.[1]

         Session Date: May 23, 2017

         Appeal from the Juvenile Court for Maury County No. 11-JV-131 George L. Lovell, Judge

         The trial court determined that the primary residential parent should be changed from mother to father without any change in the equal division of parenting time. Because the trial court failed to address the best interest of the child in its order, we vacate and remand for the entry of findings of fact and conclusions of law.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated and Remanded

          Julie Carrell Heffington, Columbia, Tennessee, for the appellant, Kristy C.

          Lewis A. Williams, Nashville, Tennessee, for the appellee, Jeffrey F.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Jeffrey F. ("Father") and Kristy C. ("Mother") are the parents of Gunner F., born in February 2011. In September 2012, the parents entered into an agreed order and permanent parenting plan pursuant to which Mother was the primary residential parent and they had equal parenting time with the child. As part of this agreement, no child support was set. At the time of this agreement, both parents lived in Maury County.

         In May 2014, Mother and her husband moved with Gunner to Lewis County, a distance of approximately thirty miles from Father's residence in Maury County. On July 7, 2015, Father filed a motion to enroll the child in school (pre-kindergarten) in Maury County, and the juvenile court ordered that the child would remain in school in Maury County pending further orders of the court.

         On July 20, 2015, Mother filed a petition to modify the permanent parenting plan to increase her parenting time to 261 days a year and to enroll the child in school in Lewis County. Father answered and submitted a counter-petition requesting a modification of custody to make him the primary residential parent but maintaining the same equal division of parenting time. The matter was heard on July 29, 2016, and the juvenile court entered an order on August 2, 2016 in which it found that "[t]he changed circumstance is that the child is now ready to begin school and that Mother has changed her residence from Maury to Lewis County." Because it was "Mother's decision to move, " the juvenile court determined that Mother should have to bear the burden of that decision. The court amended the parties' parenting plan to name Father the primary residential parent, "who may enroll the child in school in Maury County." Mother appeals.

         Analysis

         (1)

         Father argues that this appeal should be dismissed for lack of a final order pursuant to Tenn. R. App. P. 3(a).[2] He asserts that the juvenile court's August 2, 2016 order is not a final order because it does not address the issues of child support and Father's prayer for attorney fees. We reject Father's argument because these issues were not raised in the petition on appeal. Contrary to the representation of counsel for Father at oral argument, Mother's petition does not include a prayer for child support. Moreover, Mother did not request child support at the hearing.[3] Mother did not raise the issue of child support until after she had filed her notice of appeal on August 10, 2016. On September 14, 2016, Mother filed a motion for child support with a child support worksheet. In his response opposing Mother's motion, Father requested that the court award him his attorney fees ...


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