Tonya Renee Fletcher v. Glen Allen Fletcher

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 4, 2011 Session

TONYA RENEE FLETCHER
v.
GLEN ALLEN FLETCHER

Appeal from the Chancery Court of Bedford County
No. 23,574 J.B. Cox, Chancellor

No. M2010-01777-COA-R3-CV - Filed September 26, 2011

This post-divorce appeal involves parenting issues. The parties, parents of two minor
children, divorced pursuant to a marital dissolution agreement. After post-divorce custody
disputes arose, the parties went through mediation and arrived at an agreed parenting plan.
The next day, the mother repudiated the agreement. The father then filed a motion to enforce
the mediation agreement. The mother requested an evidentiary hearing on whether the
parenting arrangement embodied in the mediated parenting plan was in the best interest of
the children. The trial court declined to hear any evidence, and found that the mediated
parenting plan was a valid, enforceable contract. It entered an order enforcing the mediated
parenting plan. The mother now appeals. We reverse, holding that the trial court erred in
applying contract analysis to the mediated parenting plan, and remanding for an evidentiary
hearing on whether the parenting arrangement in the mediated parenting plan is in the best
interest of the minor children.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Norris A. Kessler, III, Winchester, Tennessee, for Defendant/Appellant, Tonya Renee
Fletcher.

Doug Aaron, Manchester, Tennessee, for Plaintiff/Appellee, Glen Allen Fletcher.
 OPINION

F ACTS AND P ROCEEDINGS B ELOW

Defendant/Appellant Tonya Renee Fletcher (“Mother”) and Plaintiff/Appellee Glen Allen
Fletcher (“Father”) were divorced in May 2001 by consent decree. Their marital dissolution
agreement incorporated a permanent parenting plan that resolved the parenting issues as to
their two minor children, a son born in 1996 and a daughter born in 2000. Under the agreed
parenting plan, the parties had “shared custody” of their two children, with Mother
designated as the primary residential parent. Father was allocated parenting time every other
weekend, with provisions for other parenting time on holidays and in the summer, by
agreement of the parties.

Subsequently, Father apparently filed a petition to modify the agreed parenting arrangement.
Although his petition is not in the appellate record, the parties’ disputes apparently included
Father’s concerns that Mother would suffer a seizure1 while the children were in her care,
and inappropriate behavior by the parties and their family members in the presence of the
children, frequently at the exchange between the parents. The trial court held evidentiary
hearings on Father’s petition in August, October, and November 2003. An order was entered
in January 2004, and subsequently a modified parenting plan was entered.2 Mother had
apparently remarried, and under the January 2004 order, while Mother remained the primary
residential parent, she was required to move into her new spouse’s home and to have another
adult in the home when the children were present, in the event that Mother suffered a seizure
while the children were in her care. Father was given more parenting time, the place of
exchange was changed to a local police department, and the parties were enjoined to conduct
themselves appropriately.

In October 2008, Father filed another petition to modify the parenting plan. By that time,
Mother was apparently no longer married or was not living with her husband, and her mother
(“Grandmother”) was living with Mother and the children. Grandmother was the mandated
“other adult” required to be in Mother’s trailer home when the children where there, pursuant
to the January 2004 order. Father’s petition asserted that Grandmother had been convicted
of selling illegal drugs and was scheduled to begin her incarceration later that month,
October 2008. To comply with the requirement to have another adult present, Father’s
petition asserted, Mother was planning to have her father (“Grandfather”) move into her

1
The underlying physical condition causing Mother’s seizures is not disclosed in the appellate record.
2
For reasons that are not apparent from the record, the parenting plan was signed by the trial judge in May
2006 and entered nunc pro tunc as of January 23, 2004.

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home, and Grandfather reportedly had several convictions for driving under the influence
(DUI). In addition, Father’s petition asserted, Mother had pending charges of DUI and
possession of illegal drugs, and was on probation for shoplifting. Father’s petition stated that
he had remarried and was living in a large home in Georgia. Father asserted a material
change in circumstances and sought sole custody of the children. Father’s petition attached
supporting documents such as arrest reports on Mother and Grandmother.

In November 2008, the trial court held a hearing on Father’s petition. After Mother testified
on direct examination, a recess was taken. During the recess, the parties apparently reached
an agreement on the parenting disputes. As a result, the trial court entered an “Agreed
Temporary Custody Order,” under which Father was designated the primary residential
parent of both children. Mother was granted parenting time every other weekend. The
children thereafter began residing with Father in Georgia.

Approximately a year later, in December 2009, Mother filed a petition for modification of
the “Agreed Temporary Custody Order.” Mother alleged a material change in circumstances
since entry of the order. Mother asserted, inter alia, that Father was not providing proper
medical and dental care for the children, did not keep her informed about the children’s
medical and dental issues, interfered with her telephone visitation, did not notify her about
the children’s extracurricular activities, and sent the children to visit her when they had staph
infections. Mother sought to regain her designation as the primary residential parent. She
filed a motion to allow the children to testify as to their preference on custody. Father filed
a response, denying Mother’s allegations and denying any material change in circumstances.

On March 30, 2010, the parties participated in a mediation of their disputes. On April 12,
2010, the mediator filed a short report, informing the trial court that the mediation occurred,
and that both parties and their attorneys were present. The report stated simply: “The
mediation was successful.”

Almost two months later, Father filed a motion “to enforce” the agreement that resulted from
the mediation. The motion attached a form Permanent Parenting Plan Order, filled in by
handwriting, and signed by the parties on the day of the mediation, March 30, 2010. The
form order retained Father as the children’s primary residential parent, with alternate
parenting time for Mother. It did not include the requirement that Mother have another adult
in her home if the children were present. Father’s motion to enforce the agreement asserted
that the mediation was “fruitful” and that “[a]ll were satisfied with the outcome of
mediation.” It stated that the parties reduced their agreement to writing, namely, the attached
parenting plan. The motion claimed that Mother “breached” the agreement by refusing to
sign the final order, and asked the trial court to “adopt[] and enforce[]” the parenting plan.

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In response to Father’s motion to enforce the mediation agreement, Mother admitted that the
mediation took place and that “the agreement was reduced to writing,” but denied that the
mediation was “fruitful” or that “all were satisfied with the outcome of mediation.” Mother
acknowledged that the agreement Father sought to enforce had been signed by the parties,
but asserted that the agreement was “not in the best interest of the children.” She argued that,
even with a signed, mediated agreement, the trial court was nevertheless required to conduct
a best interest analysis, citing authority. Mother’s pleading asked the trial court to set aside
the mediated parenting plan and hold a hearing in which the children would be permitted to
testify as to their preference on custody.

On July 23, 2010, the trial court held a hearing on Father’s motion to enforce the mediated
agreement, and Mother’s cross-motion to set aside the agreement. Only the attorneys for the
parties were present at the hearing. Mother’s attorney acknowledged that the mediation
occurred and resulted in a handwritten agreed parenting plan that both parties signed. The
next day, Mother informed her attorney that she had not realized that her signature to the
agreed parenting plan would preclude a hearing at which the parties’ children would be
permitted to testify as to their preference on custody. Consequently, Mother refused to sign
a final agreed parenting plan. Mother argued that the custody of the parties’ children could
not be determined by contract, and asked the trial court to conduct an evidentiary hearing and
allow the children to testify.

Father’s counsel stressed that both parties were represented by counsel at the mediation, that
the parties “negotiated an arm’s length transaction,” and that the resulting written agreement
“was signed, sealed, delivered.” Father contended that enforcement of the mediated
agreement was “in the best interest of the children.”

After hearing the arguments of counsel, the trial court noted that there were no allegations
of fraud, duress, or any other contract principle to vitiate the mediated agreement. (7.)
Citing Barnes v. Barnes, 193 S.W.3d 495 (Tenn. 2006), it rendered the following oral ruling:

. . . I honestly believe that part and parcel of a settled permanent parenting
plan, mediated, negotiated permanent parenting plan is a pledge to the Court,
that the plan as negotiated is in the best interests of the children. That should
be the lynchpin behind which you-all began, and I am sure that’s part and
parcel of what the negotiations were without having to go into it. I think I am
prejudicially bound by Barnes.
***
. . . I think that I am bound by that under the circumstances. It sounds like the
process too, based upon you-all’s representations, was not only thoroughly

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 entered into, but completely. . . . I think I am forced under the Barnes rationale
to enforce the mediated agreement.

After that, on July 30, 2010, the trial court entered its “Order Enforcing Mediation Custody
Agreement.” The order stated that the matter came to be heard based on Father’s motion to
enforce the mediation agreement and Mother’s cross-motion to set it aside. The order stated
that the trial court had “inspected the mediation agreement,” which reduced to writing the
parties’ full agreement and was signed by both. The trial court noted that the attorneys for
both Mother and Father “regularly practice before the Court and are competent attorneys in
good standing with the Court.” It observed that there were no allegations “of coercion,
duress or fraud . . . as a basis to set aside the agreement.”

The trial court stated that it was being asked to determine whether the mediated agreement
was “a valid and enforceable contract” and to “perform an analysis to determine that the
agreement is in the best interest of the minor children.” Finding that Barnes “must be
followed in the analysis of this case,” the trial court held as follows:

The Court finds that the Parenting Plan form is sufficient to find a contract. The proof
at the hearing was the parties’ intent was to resolve all issues raised by the case.
Counsel represented both parties and the mediator signed off on the agreement along
with both parties. Clearly there was a meeting of the minds to resolve the issues.

Secondly the Court finds that implicit in this mediation agreement is the
understanding that it was proposed in good faith and in the best interest of the
minor children. A review of the history of the parties’ specific circumstances
and the past and present circumstances of the minor children, (as gleaned from
the Court file, the pleadings and from argument of counsel) the Court finds the
mediation agreement is in the best interest of the minor children.

On this basis, the trial court granted Father’s motion to enforce the mediation agreement and
dismissed Mother’s motion to set it aside.3 From this order, Mother now appeals.

ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Mother asserts that the trial court erred in granting Father’s motion to enforce the
mediation agreement based on Barnes, in the absence of proof regarding the best interests

3
Although the Order Enforcing Mediation Custody Agreement refers to “[t]he proof at the hearing,” this is
an apparent misstatement. It is undisputed that no proof was heard at the July 23, 2010 hearing.

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of the parties’ children. Father asserts that the trial court was not required to conduct an
evidentiary hearing on custody, and that it correctly granted his motion to enforce the
mediation agreement.

On appeal, “[w]hen the trial court has set forth its factual findings in the record, we will
presume the correctness of these findings so long as the evidence does not preponderate
against them.” Evans v. Evans, No. M2002-02947-COA-R3-CV, 2004 WL 1882586, at *4
(Tenn. Ct. App. Aug. 23, 2004) (citing T ENN R. A PP. P. 13(d); Crabtree v. Crabtree, 16
S.W.3d 356, 360 (Tenn. 2000)); accord. Nashville Ford Tractor, Inc. v. Great Am. Ins. Co.,
194 S.W.3d 415, 424 (Tenn. Ct. App. 2005). We review the trial court’s conclusions of law
de novo with no presumption of correctness. Nashville Ford Tractor, Inc., 194 S.W.3d at
425.

In general, “[t]rial courts are vested with wide discretion in matters of child custody” and
“the appellate courts will not interfere except upon a showing of erroneous exercise of that
discretion.” Woods v. Tidwell, No. M2009-01972-COA-R3-CV, 2011 WL 1662900, at *3
(Tenn. Ct. App. May 3, 2011) (quoting Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App.
1993). The abuse of discretion standard has been described as follows:

Under the abuse of discretion standard, the trial court’s decision is affirmed
“so long as reasonable minds can disagree as to the propriety of the decision
made.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citing State v.
Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266,
273 (Tenn. 2000). This Court is not permitted “to substitute its judgment for
that of the trial court.” Id. (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920,
927 (Tenn. 1998)). The trial court may abuse its discretion by applying an
incorrect legal standard or reaching as decision against logic or reasoning that
causes an injustice to the complaining party. Id. (quoting State v. Shirley, 6
S.W.3d 243, 247 (Tenn. 1999)).

Andrews v. Andrews, ___ S.W.3d ___, ___, No. W2009-00161-COA-R3-CV, 2010 WL
3398826, at *16 (Tenn. Ct. App. Aug. 31, 2010).

A NALYSIS

Mother asserts that the trial court erred in refusing her request for an evidentiary hearing
before making its decision on Father’s motion to enforce the mediated custody agreement.
She contends that the trial court erroneously based its decision on Barnes v. Barnes,193
S.W.3d 495 (Tenn. 2006). Mother argues that the trial judge has the responsibility to

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determine the best interest of the parties’ minor children, was not bound by the mediated
agreement, and was obliged to hear evidence on the children’s best interests before making
his decision. In support, Mother cites Tenn. Code Ann. § 36-6-106(a) (2010); T.C.A. § 36-6-
401(a) (2010); Tuetken v. Tuetken, 320 S.W.3d 262 (Tenn. 2010); Greer v. Greer, No.
W2009-01587-COA-R3-CV, 2010 WL 3852321, at *7 (Tenn. Ct. App. Sept. 30, 2010); and
In the Matter of D.M.H. and A.L.H., No. W2006-00270-COA-R3-JV, 2006 WL 3216306,
at *1 (Tenn. Ct. App. Nov. 8, 2006).

In response, Father asserts that the trial court was not required to hear proof before
determining that the mediated parenting plan was in the best interest of the minor children.
He cites the general rule that “a party is presumed to know the contents of a contract he or
she has signed.” Father acknowledges that a parenting plan is not a contract in the same way
that a marital dissolution agreement may be viewed as a contract, but contends that Mother
cannot simply change her mind about a signed, mediated parenting plan, and that such an
agreement cannot be set aside “for just any reason.” In support, Father cites Vaccarella v.
Vaccarella, 49 S.W.3d 307, 315 (Tenn. Ct. App. 2001), and Barnes, relied on by the trial
court. He concedes that Tuetken holds that “parents cannot bind the court with an agreement
affecting the best interest of their children,” but argues that Tuetken does not mandate an
evidentiary hearing in every case. Tuetken, 320 S.W.3d at 272. Father cites the trial court’s
history with the parties in this case as sufficient to support its holding, even without hearing
proof. He argues that agreed parenting plans are often entered by trial courts without an
evidentiary hearing, and that it would be impractical to require such a hearing in every case.

We start, of course, with the applicable statutes. Tennessee Code Annotated § 36-6-101
authorizes the trial court in a divorce or other proceeding “where the custody of a minor child
. . . is a question” to enter an order awarding “the care, custody and control of such child”
to either parent or both parents.4 Tenn. Code Ann. § 36-6-101(a)(1) (2010). The statutes
mandate that such a custody “determination shall be made on the basis of the best interest of
the child.” Tenn. Code Ann. § 36-6-106(a) (2010). This is emphasized in the statutes
regarding parenting plans, which state that parents have the responsibility to care for their
minor children, and in a legal proceeding between the parents, “the best interests of the child
shall be the standard by which the court determines and allocates the parties’ parental
responsibilities.” Tenn. Code Ann.§ 36-6-401(a) (2010). In allocating the parenting
responsibilities between the parents, “the court shall have the widest discretion to order a
custody arrangement that is in the best interest of the child.” Tenn. Code Ann. § 36-6-
101(a)(2)(A)(i). Thus, Tennessee’s statutes embrace the standard stated so eloquently in Bah

4
The award may be to a non-parent if the welfare and interest of the child require it. Tenn. Code Ann. § 36-
6-101(a)(1) (2010).

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v. Bah: “[T]he child’s best interest is the paramount consideration. It is the polestar, the
alpha and omega.” Bah v. Bah, 668 S.W.2d 663, 665 (Tenn. Ct. App. 1983).

The trial judge’s responsibility for protecting the best interests of children involved in legal
proceedings before the court was discussed at length in Tuetken v. Tuetken, 320 S.W.3d 262
(Tenn. 2010). In Tuetken, the parties, divorced parents of two minor children, agreed to a
consent order requiring the parents to submit parenting disputes to an arbitrator and giving
the arbitrator the authority to make decisions regarding the best interests of the parties’
children. Id. at 264. After the father objected to a decision by the parenting arbitrator, the
trial court modified the arbitrator’s decision. Id. at 266. The mother appealed, arguing that
the trial court had authority to modify the parenting arbitrator’s decision only within the
limits of Tennessee’s arbitration statutes. Id. After the intermediate appellate court affirmed
the trial court’s decision, the mother appealed to our Supreme Court. Id.

On appeal, the Supreme Court in Tuetken considered the issue of “whether Tennessee law
permits parties to submit to arbitration issues that implicate the trial court’s duty to ensure
that the best interests of the children are protected.” Id. at 271. Commenting on the statutes
outlined above, the Tuetken Court observed that, “taken together, [the statutes] impose a
duty on trial courts to protect the best interests of children.” Id. It found that prior cases had
established that parents cannot bind the court by entering into an agreement that impacts the
best interest of their children. Id. at 272.

The Tuetken Court acknowledged that the State arbitration statutes, which provided for only
limited court review of arbitration awards, reflected policies supporting the finality of
arbitration awards. Id. It then observed:

Although an important factor, the need to promote finality is not the prevailing
concern in resolving child-related matters. Rather, the prevailing concern is
ensuring that the best interests of the child are protected.

Id. On that basis, the Tuetken Court held that “parties may not submit parenting issues to
binding arbitration.” Id. It elaborated:

Parties may submit such [parenting] disputes to non-binding arbitration. If the
parties agree with the result produced, the parties must submit the agreement
to the trial court for a determination of the children’s best interests.

Id. at 272-73.

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Tuetken was applied by this Court in Greer v. Greer, No. W2009-01587-COA-R3-CV, 2010
WL 3852321, at *7 (Tenn. Ct. App. Sept. 30, 2010). In Greer, as in the case at bar, the
divorced parents of minor children went through court-ordered mediation and arrived at an
agreement regarding numerous parenting issues. Id. at *2. At the ensuing trial, the trial
court took proof on the issues on which the parties had agreed during the mediation, and
ultimately entered an order that differed from the mediated agreement. Id. at *2-5. The
father appealed, arguing that the trial court erred in disregarding the agreement reached on
parenting issues after the court-ordered mediation. Id. at *6.

On appeal, this Court in Greer held that, under Tuetken, the trial court should consider a
mediated agreement between the parents on parenting issues, but was not bound by such an
agreement. Id. at *7. Instead, Greer stated, the trial court was obliged to “evaluate whether
the agreed arrangement is in the best interest of the children.” Id. The Greer Court
observed:

While an agreement on parenting issues would ideally reflect the parties’
considered judgment on the arrangement that would best fit the needs of their
children, it is also recognized that other factors can come into play in such an
agreement, such as the original dysfunction in the parties’ relationship,
inequality of resources, reluctance to involve the children in the litigation, or
even the parties’ desire to get the divorce “over with.” For that reason, the
trial court has broad discretion to determine an appropriate parenting plan in
light of the evidence adduced at a hearing and the best interest of the children,
even where the parties have reached an agreement on such issues.

Id. (citations omitted). Thus, Greer held that the trial court was not bound by the parties’
mediated agreement on parenting issues and affirmed the trial court’s decision. Id. at *7, 9.
See also Woods, 2011 WL 1662900, at *2 (affirming the trial court’s decision to decline to
adopt the parenting agreement on which the parties had agreed); In re D.M.H., 2006 WL
3216306, at *9 (“[I]f the trial judge concludes that there was, in fact, a written, signed,
mediated agreement between the parties, a ‘best interest’ analysis is still required in order to
approve the mediated parenting plan.”).

We now apply these standards to the decision of the trial court below. It is undisputed on
appeal that Mother agreed to the mediated parenting plan and signed it, and the next day
repudiated it, asking for an evidentiary hearing on the children’s best interest. The trial court
declined to grant an evidentiary hearing, beguiled by the holding of our Supreme Court in
Barnes v. Barnes, 193 S.W.3d 495 (Tenn. 2006).

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In Barnes, the parties, parents of one minor child, executed a marital dissolution agreement
(MDA). Id. at 496-97. After the husband repudiated the MDA, the wife sought to enforce
it. Id. at 497. After engaging in mediation, the parties agreed to a parenting plan, but all
other issues remained unresolved. Id. After hearing testimony on fault, the trial court
entered an order finding that the wife was at fault for the divorce, but otherwise enforcing
the MDA as a contract on issues concerning the parties’ assets, liabilities, and spousal
support. Id. The husband appealed, ultimately appealing to the Supreme Court.

On appeal, the Barnes Court observed that prior cases had established that an MDA “is a
contract.” Id. at 498 (quoting Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn. 2001)). It
stated that “agreements made respective to marriage, . . . which . . . determine the rights of
each spouse in the marital property and to resolve other issues, such as spousal support . . .
consistently have been found to be valid and enforceable contracts between the parties.” Id.
(citations omitted). The Barnes Court concluded that a written MDA reached in mediation
and signed by both parties is a contract, “the enforceability [of which is] governed by
contract law.” Id. at 498-99.

It can readily be seen that Barnes is inapposite to the instant case. In Barnes, the parties’
parenting issues were mediated separately and were not at issue; the husband disputed the
trial court’s decision to enforce the MDA as to issues not related to the parties’ child, such
as division of the marital property and spousal support. Id. at 497. In contrast, in the case
at bar, the mediated agreement at issue involved only parenting issues. Thus, the holding in
Barnes, utilizing contract analysis, is inapplicable.

In this case, the trial court below specifically applied the contract analysis utilized in Barnes.
At the hearing, the trial court heard the parties’ cross-motions, to enforce the mediated
agreement or to set it aside. The trial judge rejected Mother’s request for an evidentiary
hearing, stating that he was “forced under the Barnes rationale to enforce the mediated
agreement.” The ensuing written order was styled as “Order Enforcing Mediation Custody
Agreement,” and clearly analyzed whether the mediated parenting plan was “a valid and
enforceable contract,” specifically citing Barnes.

As noted above, a trial court may be found to have abused its discretion “by applying an
incorrect legal standard.” Andrews, 2010 WL 3398826, at *16. Here, by concluding that it
was bound under Barnes to apply a contract analysis to the parties’ mediated parenting plan,
the trial court applied an incorrect legal standard. Under Tuetken, “parents cannot bind the
court with an agreement affecting the best interest of their children.” Tuetken, 320 S.W.3d
at 272. Even if Mother had not repudiated the mediated parenting plan, the “trial court is not
. . . bound by such an agreement, but instead must evaluate whether the agreed arrangement

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is in the best interest of the children.” Greer, 2010 WL 3852321, at *7. To hold otherwise
would be to supplant the trial judge as the ultimate arbiter of the best interest of the children
within its purview. Thus, we must conclude that, by applying contract analysis to the
mediated parenting plan, the trial court abused its discretion by applying an incorrect legal
standard.

In addition to contract analysis, the trial court also indicated its trust in the mediation process
to produce an agreement that was in the best interest of the parties’ children. The trial court
noted specifically that the attorneys representing the parties in this cause regularly practiced
before the trial court “and are competent attorneys in good standing.” While trusted attorneys
are an invaluable asset to the trial court, and the skill and integrity of the parties’ attorneys
may be considered in the ultimate decision, we note that the trial court cannot simply defer
to the judgment of the parties’ attorneys regardless of their trustworthiness. Under Tuetken,
if the trial judge cannot delegate the best interest determination to a chosen arbitrator, he
likewise cannot delegate it to the parties’ lawyers.

In its oral ruling, the trial court also stated that “part and parcel of a settled permanent
parenting plan, mediated, negotiated permanent parenting plan is a pledge to the Court, that
the plan as negotiated is in the best interests of the children . . . . I am sure that’s part and
parcel of what the negotiations were without having to go into it.” Similarly, the final Order
Enforcing Mediation Custody Agreement stated that “implicit in this mediation agreement
is the understanding that it was proposed in good faith and in the best interest of the minor
children.” While this is always the court’s fond hope, it cannot be its presumption. We
observed in Greer that, while a mediated parenting plan agreement “would ideally reflect the
parties’ considered judgment on the arrangement that would best fit the needs of their
children,” experience tells us that a host of other factors can result in a mediated agreement
that does not serve the children’s best interests. Greer, 2010 WL 3852321, at *7. Under
Tuetken and the applicable statutes, the trial judge cannot simply presume that a mediated
parenting plan is in the children’s best interest, particularly where, as here, it is repudiated
by one of the parties prior to being incorporated into a court order. Instead, the trial judge
must affirmatively ascertain whether it is in their best interest.

In the final Order Enforcing Mediation Custody Agreement, the trial court also stated that,
to determine whether the mediated parenting plan was in the best interest of the parties’
children, the trial judge reviewed “the history of the parties’ specific circumstances and the
past and present circumstances of the minor children, (as gleaned from the Court file, the
pleadings and from argument of counsel) . . . .” After doing so, the trial court concluded that
the mediated parenting plan was in the children’s best interest.

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In this case, however, such a review does not provide a sufficient basis for determining
whether the arrangement set forth in the mediated parenting plan is in the children’s best
interest. We recognize that, although the parties’ original divorce was pursuant to an agreed
MDA, post-divorce proceedings had resulted in evidentiary hearings on the parties’ parenting
arrangement. In late 2003, the trial court conducted several hearings on Father’s petition to
modify the agreed parenting plan, which resulted in the January 2004 order requiring Mother
to have another adult in the home when the children were present. Years later, Father filed
another petition to modify the parenting plan, resulting in an evidentiary hearing in
November 2008, truncated after Mother’s direct examination by Father’s counsel. This
resulted in the November 2008 “Agreed Temporary Custody Order” designating Father as
the temporary primary residential parent. Thus, the trial judge below had heard testimony
in the past from both Mother and Father regarding parenting issues.

Nevertheless, the mediation, and the mediated parenting plan, arose from Mother’s
December 2009 petition for modification, seeking to regain her designation as the children’s
primary residential parent. In her petition, Mother made numerous allegations, asserting that
Father did not properly care for the parties’ children. At the time of the July 2010 hearing
on the mediated parenting plan, the trial court had before it no evidence or testimony on
Mother’s allegations. Even assuming that the trial judge was skeptical of Mother’s
allegations based on his observation of her testimony in earlier hearings, the record does not
include any evidence on the children’s well-being since Father was designated as the
temporary primary residential parent and the children moved to Father’s home in Georgia.
Thus, there was little to “glean[] from the Court file” to ascertain whether Mother’s
allegations were valid or whether the parenting arrangement in the mediated parenting plan
was in the children’s best interest. Under these circumstances, we must conclude that the
trial court abused its discretion by refusing to hear any evidence on whether the parenting
arrangement reflected in the mediated agreement was in the best interest of the parties’
children.

We do not hold that, in every instance in which a trial court is presented with a mediated
parenting plan, the trial court must conduct a full evidentiary hearing. Divorces are like
snowflakes; each one is different. In some cases, the trial court is called upon to determine
custody with no prior exposure to the parties; in other cases, by the time the trial court
decides custody, the trial judge has come to know the parties all too well. We hold only that
the trial judge, and the trial judge alone, has the solemn duty to determine whether a given
parenting arrangement is in the best interest of a child in his charge, and that the record must
reflect a sufficient basis for such a determination. In this case, we hold that the trial court
abused his discretion by finding that the parenting arrangement in the mediated agreement
was in the children’s best interest, in the absence of evidence to support such a finding.

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Therefore, the Order Enforcing Mediation Custody Agreement must be reversed, and the
cause must be remanded for an evidentiary hearing.5

C ONCLUSION

The decision of the trial court is reversed, and the cause is remanded for further proceedings
consistent with this Opinion. Costs on appeal are assessed against Plaintiff/Appellee Glen
Allen Fletcher, for which execution may issue if necessary.

___________________________
HOLLY M. KIRBY, JUDGE

5
We note that Father remains the primary residential parent pursuant only to a “temporary” order. This can
affect the burden of proof, and whether a material change in circumstances must be shown, in the
proceedings on remand. In addition, while the cause must be remanded for an evidentiary hearing, we
express no opinion on the evidence to be heard, and in particular do not address Mother’s motion for the trial
court to hear testimony from the parties’ minor children.

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