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In the case of Howard v. Halford (No. E2014-00002-COA-R3-JV. Dec 22, 2014), The Court of Appeals reviews the Trial Court’s motion to clarify the requirements of the residential co-parenting schedule as laid out in the permanent parenting plan. The Court entered the permanent parenting plan in January of 2013. Mother was named as the primary residential parent. Father was scheduled visitation for the child whenever he is home from sea, with Mother having the child every other weekend while the father is home. Father was also scheduled to care for the child Monday through Friday only while Mother is at work. These two portions of the schedule are contradictory.

In February, Mother filed a Motion for Clarification to clarify conflicting language in the parenting plan. The parenting plan was revised in December with added clarification that Father is scheduled to care for the child only during the day while mother is at work. The child should remain in custody of the mother for all nights during the week, even when the father is home from his work.

Father appealed the final judgment, questioning if the Court erred by making a modification to the parenting plan without proof of a change in material circumstance. Mother defends the Courts judgment as a correction of an error, instead of an actual modification to the parenting plan.

The Court of Appeals agrees with Mother, in that the trial court was correcting an unclear provision of the parenting plan. However, the trial court erred by making a factual finding regarding the agreement based on more than just review of the record, without requiring evidence or testimony from the parties.

Tennessee Rule of Civil Procedure 60.01 states that clerical errors may be corrected at any time by the court on its own or on a motion by one of the parties. After the trial, Father filed a statement of evidence stating that no proof was presented during the hearing. Mother replied with her own statement of evidence, approved and signed by the trial court judge. Mother’s statement of evidence states that although no new proof was provided, the judge examined the last entered order along with the record and court file. The statement of evidence also states that the judge did make a judgment on the child’s best interest, preventing the child from being “bounced around” from parent to parent and being separated from Mother for extended periods of time while Father is home from sea.

For these reasons, the Court of Appeals recognizes that the revision of the parenting plan was a correction of a clerical error, since the original language was directly contradictory. The trial court was not wrong in considering the record, file, and previous order to determine the correct language for the corrected portion of the parenting plan. However, the trial court erred in considering factual findings (such as the child being “bounded around”) when making a judgment without the presentation of proof. This error involves the trial court making a judgment of “best interest” instead of consulting the record alone. The Court of Appeals vacates the Trial Court’s order and remands for the court to conduct an evidentiary hearing to determine the parties’ intent at the time of the signing of the Agreement and to then clarify the ambiguous provision accordingly. Our family law and divorce legal team in Knoxville, TN can help you!

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