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In re John B.

Court of Appeals of Tennessee, Nashville

September 17, 2019

IN RE JOHN B. [1]

          Session September 4, 2019

          Appeal from the Juvenile Court for Macon County No. 2012-JV-10 Ken Witcher, Judge

         This is an appeal in a proceeding to modify a residential parenting plan, established in January 2013. The initial petition to modify the plan was filed by the Father, accompanied by his proposed plan, in October 2016; Mother answered the petition in January 2017 and a hearing was set for two non-consecutive days in July 2018. During the hiatus in the hearing, the Mother filed a counter-petition and a proposed parenting time plan. The hearing resumed solely on Father's plan and the court entered an order finding a material change of circumstance and reducing Father's parenting time; Father appeals. Because the court has not yet resolved the claims between the parties, we dismiss the appeal for lack of a final judgment.

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

          Bert W. McCarter, Murfreesboro, Tennessee, for the appellant, Scott H. B.

          Lisa C. Cothron, Lafayette, Tennessee, for the appellee, Nedra D. P.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Arnold B. Goldin, J., joined.

          MEMORANDUM OPINION [2]

          PER CURIAM

         This appeal arises out of proceedings related to a petition to modify a parenting plan filed by Scott B., father of John B., and a counter-petition filed by Nedra P., John B.'s mother. Father's petition, in which he alleged facts which he contended showed a material change of circumstance supporting a modification in the parenting plan which had been entered on January 31, 2013, was filed on October 18, 2016; Father filed a proposed parenting plan with the petition which increased his residential parenting time and designated him primary residential parent. Mother answered the petition on January 17, 2017, denying that Father was entitled to relief; Mother did not include a proposed parenting plan with her answer. In due course, a hearing on Father's petition was set for July 9 and 16, 2018.

         A hearing on Father's petition began on July 9; in her opening presentation, Mother's counsel stated: "In sum, we're asking this Court not to increase [Father's] parenting time, nor his decision-making authority, but actually to limit it." At the end of the first day, the court asked both counsel:

One thing that I want some input on from both of you - and this may be something you can do between now and next Monday - [Mother's counsel] is apparently asking that the Court modify the parenting plan in a way that she wants it to be modified. Now, how can I do that? You haven't filed any kind of action asking the Court to modify. Can the Court do that?

         Mother's counsel responded: "Well, Your Honor, they asked to modify custody, not real clearly, and/or the parenting schedule, and we're essentially saying it should not be modified that way, it should be modified this way. We have not filed a counter-complaint, Your Honor."

         On July 12, Mother filed a Counter-Petition, in which she sought to limit Father's residential parenting time to "either supervised parenting time during the day on alternate weekends, or in the alternative, limited to 48 hour periods, with the exception of the week after Christmas, with [the] requirement that Father immediately begin, and successfully complete, a forensic psychological evaluation and recommended treatment . . ." Mother attached a proposed parenting plan to her petition, which designated her as ...


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