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Lawson v. Stewart

Court of Appeals of Tennessee, Nashville

September 28, 2017

HEATHER KAILONI LAWSON (STEWART)
v.
MICHAEL SHERMAN STEWART

          Assigned on Briefs August 16, 2017

         Appeal from the Chancery Court for White County No. 9930 Ronald Thurman, Chancellor

         This is a post-divorce proceeding commenced by Mother to modify an existing permanent parenting plan. The trial court entered a default judgment, and then, without conducting an evidentiary hearing, adopted the parenting plan attached to Mother's petition, decreased Father's visitation time, and increased his monthly child support obligation. Father filed a motion to set aside the default judgment, which the trial court treated as a motion to alter or amend the judgment, and denied the motion. Father timely appealed. Because the trial court's order does not contain sufficient findings regarding the modification, we vacate the judgment and remand for further proceedings consistent with this Opinion.

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

          Cindy Morgan, Sparta, Tennessee, for the appellant, Michael Stewart. Cynthia S. Lyons, Cookeville, Tennessee, for the appellee, Heather Kailoni Lawson (Stewart).

          Arnold B. Goldin, J., delivered the opinion of the Court, in which Brandon O. Gibson and Kenny Armstrong, JJ., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         Background and Procedural History

         Heather Kailoni Lawson ("Mother, " or "Appellee") and Michael Sherman Stewart ("Father, " or "Appellant") were divorced in March 2009. Concurrent with the divorce, the trial court entered a permanent parenting plan for the parties' minor child. The plan designated Mother as the primary residential parent, awarded Father 109 days per year of parenting time, and set Father's monthly child support obligation at $220.00.

         On April 18, 2016, Mother filed a petition to modify the parties' parenting plan and attached a proposed parenting plan to the petition. Therein, Mother alleged that a modification of the current parenting plan was justified and also requested that the court grant an increase in Father's child support obligation.[1] Father was served with a copy of the petition on May 2, 2016; however, he failed to timely answer. On July 1, 2016, Mother moved the court to enter a default judgment against Father. On July 11, 2016, the trial court held a hearing on Mother's motion. Father appeared at the hearing and requested additional time to answer the petition. The trial court granted Father an extension to file an answer until July 15, 2016 at 4:00 p.m. Although Father retained an attorney on the day after the hearing, he failed to communicate to his attorney the filing deadline ordered by the trial court, and no answer was filed by the deadline. As a result, on July 29, 2016, the trial court entered a default judgment against Father, and without conducting an evidentiary hearing, adopted Mother's proposed parenting plan in toto, and increased Father's child support obligation.

         The default order of the trial court provides, in its entirety, as follows:

1. Michael Sherman Stewart did not file an Answer to the Petition to Modify Parenting Plan by July 15th, 2016, at 4:00 p.m.
2. A Default Order is hereby entered against Michael Sherman Stewart.
3. The attached Permanent Parenting Plan is hereby approved by this Court and is incorporated into and made a part of this Order. This Parenting Plan is the same Parenting Plan that was filed with the Petition to Modify Parenting Plan on April 18l, 2016. This is the Parenting Plan that Michael Sherman Stewart was served with a copy and the same Parenting Plan that [Father] had notice would be entered against him by Default, if he did not file an Answer to the Petition to Modify.
4. The child support worksheets are attached to the Permanent Parenting Plan and are hereby incorporated into and made a part of the Permanent Parenting Plan and also a part of this Order.
5. The child support worksheets reflect fifty-five (55) days of visitation for Father and three hundred ten (310) days visitation for Mother, as set forth in the Permanent Parenting Plan filed with the Petition to Modify.
6. [Father] failed to answer the Interrogatories and Request for Production of Documents filed against him in this case, Said Interrogatories and Request for Production of Documents were an attempt to obtain current income information, so that the most accurate child support worksheets could be drafted and approved by the Court. Since [Father] did not answer said interrogatories, the Court finds it is appropriate to impute the income previously set forth in the Parenting Plan and child support worksheets approved by this Court on March 6th, 2009. Said child support worksheets reflected a monthly income for Father in the amount of $1, 972.45. Since the Court is using Father's income from the previous Order March 6th, 2009, the Court also finds it appropriate to use the Mother's income from said March 6th, 2009 Order. Therefore, the new child support worksheets shall also reflect Mother's income at $1, 200.00 per month, as previously ordered.
7. As set forth in the Petition to Modify, Father no longer provides insurance for the minor child. Mother now provides insurance for the child and she shall be given credit on the child support worksheets for same. $318.89 shall be removed from Father's column on the child support worksheets for the child's portion of the health insurance premium. Mother shall receive a credit of $130.76 in her column for the child's portion of health insurance premium.
8. Father no longer pays child support for another child. Therefore, any credit for another child on these new child support worksheets has been removed.
9. The Father's current child support obligation shall be $483.00 per month. The Petition to Modify was filed on April 18th, 2016, therefore, Father's new child support obligation of $483.00 per month shall begin on May 1st, 2016 and shall continue to be due on the first day of each and every month thereafter.
10. Father was previously ordered to pay $220.00 per month beginning on November 1st, 2008. Father has failed to make all payments as ordered. Father should have paid $19, 800.00 in child support from November 1st, 2008 to April 30th, 2016 at $220.00 per month. Father actually paid $16, 193.58, representing an arrearage of $3, 606.42. Father's child support obligation for May 1st, 2016 is $483.00. Father actually paid $55.00 during May 2016, representing an arrearage of $428.00.
11. Mother is granted a total judgment for child support arrears in the amount of $4, 034.42, as of May 31st, 2016 ($3, 606.42 for the time period of November 1st, 2008 to April 30th, 2016, and $428.00 for May 2016). Father is ordered to pay $150.00 per month ...

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