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TRIAL COURT APPLIES INCORRECT LEGAL STANDARD REGARDING MODIFICATION OF PARENTING PLAN

In the case of Teven A., No. M2013-02519-COA-R3-JV, (Tenn. Ct. App., Dec. 29, 2014), Father appeals the Juvenile Court on issues of child support. Son was born to Mother and Father in 2005. Mother and Father were not married. In November of 2005, a parenting schedule was set by the Juvenile Court. Father was granted one visitation day every-other-week, along with four weeks of summer vacation. Christmas and other holidays were to be alternated. Father was then ordered to pay $703.00 per month for child support. Mother and Father reconciled for a short time in 2008 and terminated the order for child support. In January of 2011, an Agreed Order was entered with the Juvenile Court, once again setting child support payments. This order required the Father to pay $276.00 per month and to provide medical insurance for the child. 

In September 2012, Father petitioned to modify custody, based on a material change of circumstances. Father claimed that the Mother was unemployed and had threatened to remove the child from the magnet school he was currently attending. Father also claimed that Mother was having parties while the child was present and was placing the child in the care of her sister who exposed him to poor living conditions. Further, that Mother frequently became "irate" with Father and was accepting assistance from Father to pay her bills. The Father argued that for these reasons, he be named the primary parent. In October, 2012, Mother filed a counterclaim requesting a modification of child support payments due to a change in Father's income.


In May of 2013, a magistrate judge found that there was no significant material change in circumstances to justify a change in custody. A hearing was scheduled to discuss the Mother's petition for child support and to put in place a more specific parenting plan. In June, a hearing granted Father visitation from Monday evening to Wednesday morning, every other week, and Sunday evening to Monday morning on the alternate weeks. Father's child support payments were increased to $739.00 per month and awarded Mother $3,178.00 in retroactive child support.


Father moved for a rehearing of his petition, amended with a request for change of custody, or alternatively, equal parenting time. The amended petition pointed to changes in material circumstances since 2005 instead of facts since 2011. In October, the Juvenile Court Judge upheld the magistrates ruling in all respects. Father once again appealed the juvenile court's judgment. He pursues this appeal on the grounds of error on behalf of the Juvenile Court in finding no significant material change, decreasing his parenting time, and failing to give credit against Father's child support payments for transporting the child to and from school each day.


Father insists that the change in material circumstances should be measured from 2005 instead of 2011. However, when modifying a primary residential parent designation, "a change in circumstances is measured from the final order of custody under which the parties are operating." Therefore, the court must determine whether or not the 2011 order was a final order of custody. The Appeals Court decided that the 2011 order was, in fact, not a final order of custody. They found that the main purpose of the order was reestablishing child support payments. Though it did specify the primary residential parent, there had been no change in custody prior to the order since 2005. Based on this determination, the judgment of the Juvenile Court on the subject of custody is vacated.


The Juvenile Court also failed to state how and why they reached the decision to modify the parenting schedule, in which the Father's visitation time was reduced. Since the Court's decision to alter the parenting schedule was not supported by explanation or facts, failing to comply with Tennessee Rule of Civil Procedure 52.01, the Court of Appeals also vacated that judgment. The Court of Appeals denied reviewing the issue of child support credits, as the parenting schedule or custody circumstances may change on remand, which would then also affect the child support payment necessitating a recalculation. 

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Mr. McKellar was voted by his peers as a “Top Attorney” by Knoxville’s CityView magazine in its 2010, 2011, 2012, 2013, 2014, and 2015 editions. In 2014, 2015, and 2016, Mr. McKellar was selected as a member of the “Top 100 Trial Lawyers” by the National Trial Lawyers.

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