IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 27, 2015 Session
CHRISTOPHER MICHAEL RIGSBY v. MARCY LEANNE RIGSBY
Appeal from the Circuit Court for Hamilton County
No. 12D2501 Jacqueline S. Bolton, Judge
No. E2014-02095-COA-R3-CV-FILED-NOVEMBER 25, 2015
In this divorce case, the trial court entered a final decree of divorce based upon the sole
statutory ground of irreconcilable differences, adopting and approving the parties‟ signed
and notarized marital dissolution agreement and signed temporary parenting plan. The
trial court subsequently entered two different parenting plans, designating the second
plan as the permanent parenting plan. The mother has appealed the entry of the
subsequent parenting plans. Determining that the trial court lacked authority to enter a
temporary parenting plan concomitant with a final decree of divorce, we vacate the later
plans and reinstate the original temporary parenting plan, designating it to be the
controlling permanent parenting plan in this action.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY and JOHN W. MCCLARTY, JJ., joined.
C. Nicole Benjamin and Cathy Allshouse, Chattanooga, Tennessee, for the appellant,
Marcy Leanne Rigsby.
Michele L. Coffman and Kathryn M. Russell, Chattanooga, Tennessee, for the appellee,
Christopher Michael Rigsby.
OPINION
I. Factual and Procedural Background
This case involves the dissolution of a marriage of approximately twenty years‟
length. Four children were born of the marriage: a son, who was seventeen at the time of
the final hearing in August 2014 and will have reached the age of eighteen during the
pendency of this appeal; two other sons, who were ages eleven and eight, respectively;
and a daughter, who was seven (collectively, “the Children”).
Christopher Michael Rigsby (“Father”) filed a complaint for divorce against
Marcy Leanne Rigsby (“Mother”) on December 10, 2012. Parenting issues and the
payment of the mortgage regarding the marital residence were primary sources of
contention during the pendency of the divorce proceedings. Upon Father‟s motions, the
trial court reserved for final hearing the issue of whether to order the marital residence
sold while ordering that Mother be responsible for mortgage payments in the interim.
Following a hearing conducted on November 11, 2013, the trial court found that Mother
had failed to make the mortgage payments. The court therefore ordered that the home be
sold. The court set a subsequent hearing for December 17, 2013, concerning the
remaining issues of co-parenting and child support.
Due to the pressing demands of the trial court‟s docket on December 17, 2013, an
evidentiary hearing would have required postponement. The parties desired to sell or
refinance the marital residence, however, which necessitated immediate entry of a final
decree. The parties therefore entered into a Marital Dissolution Agreement (“MDA”) and
agreed temporary parenting plan on that day, announcing both agreements before the
court with no evidentiary hearing. The trial court entered a final decree of divorce,
incorporating the MDA and the agreed temporary parenting plan with the stipulation that
the parties would submit a permanent parenting plan no later than January 7, 2014.
According to the parenting plan entered in December 2013, Mother was
designated as the primary residential parent for the Children. The plan provided 215 days
of annual co-parenting time in favor of Mother, 150 days of annual co-parenting time for
Father, and joint decision-making authority to the parents. Neither party thereafter filed a
proposed permanent parenting plan by the January 7, 2014 deadline mandated in the trial
court‟s December 2013 order. On February 14, 2014, Mother‟s counsel filed a motion to
withdraw from representation, offering as a basis for withdrawal that counsel had been
unable to communicate with Mother. The trial court granted counsel‟s motion to
withdraw in an order entered March 3, 2014. Mother was allowed thirty days to retain
substitute counsel or elect to proceed pro se.
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The case again came on to be heard on April 15, 2014, for reasons that are not
apparent from the record except that the parties had not yet filed a subsequent parenting
plan pursuant to the court‟s December 17, 2013 order. As Mother appeared for the April
15, 2014 hearing self-represented, she requested a continuance to afford her additional
time to obtain counsel. The trial court granted a continuance to August 15, 2014, for a
hearing regarding entry of a permanent parenting plan. Meanwhile, the court also
reviewed and adopted a proposed temporary parenting plan presented by Father. In an
order entered April 25, 2014, the court adopted Father‟s proposed temporary parenting
plan pending the final hearing, upon its finding that this plan was in the best interest of
the Children. Under this plan, Father was designated as the primary residential parent, as
opposed to Mother‟s such designation in the previous plan. The new parenting plan
provided 132 days of annual co-parenting time in favor of Mother (as opposed to 215
days in the previous plan), 233 days of annual co-parenting time in favor of Father (as
opposed to 150 days in the previous plan), and maintained the parties‟ joint decision-
making authority.
By the time of the August 15, 2014 hearing, Mother had obtained counsel through
Southeast Tennessee Legal Services. At the outset of the hearing, Father‟s counsel
reminded the trial court of the case‟s procedural posture, explaining that the court had
entered a final decree of divorce in December 2013 that reserved the issue of a permanent
parenting plan. Father‟s counsel further explained that the parties were attempting to sell
or refinance the marital residence, such that entry of a final decree was necessary at that
time. During the hearing, the parties testified in open court, and the two oldest children
testified in chambers. In significant part, the parties‟ testimony focused on the Children‟s
performance in school. Upon the hearing‟s conclusion, the trial court took the matter
under advisement. The court subsequently entered a Memorandum Opinion and Order
on August 15, 2014, wherein the court, inter alia, determined that the parenting plan that
had been entered in April 2014 was in the best interest of the Children and affirmed that
it would constitute the parties‟ permanent parenting plan. The trial court altered the
parents‟ decision-making authority, however, granting Father sole authority.
Thereafter, the trial court entered an order on August 29, 2014, confirming that a
final divorce decree had been entered in December 2013 but stating that the parenting and
child support issues had been reserved. The court incorporated into the order its
Memorandum Opinion and Order, as well as the attached permanent parenting plan. On
September 15, 2014, Mother filed a “Motion for New Trial or to Alter or Amend a
Judgment.” In this motion, Mother asserted that the trial court was required to enter a
permanent parenting plan at the time the final decree of divorce was entered. Based upon
the court‟s failure to do so, Mother argued, the divorce decree was either void or
voidable. The court denied Mother‟s motion by order entered September 24, 2014.
Mother timely appealed.
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II. Issues Presented
Mother presents the following issues for our review, which we have restated
slightly:
1. Whether the trial court erred by incorporating a temporary parenting
plan rather than a permanent parenting plan into the final decree of
divorce, thus rendering the divorce decree void.
2. Whether the trial court erred by failing to treat the agreed temporary
parenting plan entered with the MDA and final decree of divorce as
a permanent parenting plan.
3. Whether the parties could declare the MDA and temporary parenting
plan voidable pursuant to the express terms of the MDA, based upon
the trial court‟s entry of a subsequent and significantly different
parenting plan.
4. Whether the trial court erred by entering a subsequent parenting plan
unsupported by a preponderance of the evidence and failing to
include findings of fact and conclusions of law in its final judgment.
III. Standard of Review
With regard to a trial court‟s findings of fact following a bench trial, Tennessee
Rule of Appellate Procedure 13(d) provides:
Unless otherwise required by statute, review of findings of fact by the trial
court in civil actions shall be de novo upon the record of the trial court,
accompanied by a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise.
We review conclusions of law, however, de novo and without any presumption of
correctness. Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996) (citing
Hillsboro Plaza Enters. v. Moon, 860 S.W.2d 45, 47 (Tenn. Ct. App. 1993)).
IV. Finality of December 2013 Divorce Decree and Parenting Plan
Mother‟s initial two issues address the propriety of the trial court‟s action in
entering a temporary parenting plan at the time the final decree of divorce was entered.
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Mother alternatively argues (1) that the divorce decree should be declared void and the
case remanded for a hearing regarding the permanent parenting plan or (2) that the
temporary parenting plan should have been treated as a permanent parenting plan, with
any subsequent changes thereto requiring a modification hearing. We will address each
of these arguments in turn.
Mother first asserts that the trial court lacked authority to enter the final decree of
divorce, which was based solely on the ground of irreconcilable differences without an
accompanying permanent parenting plan. As this Court has previously explained, “the
substantive law governing divorce is purely statutory.” See Trew v. Trew, 1986 WL 1138
at *1 (Tenn. Ct. App. Jan. 28, 1986). The controlling statute with regard to divorce based
upon irreconcilable differences states in pertinent part:
No divorce shall be granted on the ground of irreconcilable differences
unless the court affirmatively finds in its decree that the parties have made
adequate and sufficient provision by written agreement for the custody and
maintenance of any children of that marriage and for the equitable
settlement of any property rights between the parties. If the court does not
affirmatively find that the agreement is sufficient or equitable, the cause
shall be continued by the court to allow further disposition by the
petitioner. If both parties are present at the hearing, they may, at that time,
ratify any amendments the court may have to the agreement. The amended
agreement shall then become a part of the decree. The agreement shall be
incorporated in the decree or incorporated by reference, and such decree
may be modified as other decrees for divorce.
Tenn. Code Ann. § 36-4-103(b) (2014).1 Mother insists that the trial court failed to
comply with this statutory provision, thus rendering the divorce decree void.
In Trew, this Court was asked to adjudicate the validity of a divorce decree based
on the ground of irreconcilable differences when the parties had no signed written
agreement as required by the above statutory provision. See 1986 WL 1138 at *1. This
Court vacated the divorce decree, explaining:
The statute is unambiguous in mandating trial courts to affirmatively
find the parties have provided for child support, child custody, and
settlement of property rights in a written agreement. Absent compliance
1
The enactment of this statutory provision predates the statutes regarding permanent parenting plans,
Tennessee Code Annotated § 36-6-401 to -414, which were enacted in 1997.
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with this statutory requirement, the court is without authority to grant a
divorce on the grounds of irreconcilable differences.
Id. See also Mackie v. Mackie, No. 01-A-01-9810-CV-00536, 1999 WL 675134 at *1
(Tenn. Ct. App. Sept. 1, 1999) (modifying the parties‟ divorce decree to be based on
stipulated grounds pursuant to Tennessee Code Annotated § 36-4-129 rather than
irreconcilable differences because the parties had no marital dissolution agreement, as
required by Tennessee Code Annotated § 36-4-103, and because they had alleged both
“fault” and “no-fault” grounds in their pleadings).
In the case at bar, however, the parties had entered into signed, written
agreements, which purported to provide for child support, a co-parenting schedule, and
settlement of their property rights. The only issue regarding the parenting plan was that it
was designated as “temporary,” with the stipulation that a permanent plan would be
forthcoming. Furthermore, in its final decree, the trial court affirmatively found in
pertinent part:
The parties have entered into a written, notarized Marital Dissolution
Agreement and written Temporary Parenting Plan, which have been
reviewed by the Court, and the Court affirmatively finds that the Marital
Dissolution Agreement makes an equitable settlement of the parties‟
property rights and that the Temporary Parenting Plan makes adequate and
sufficient provision for the temporary residential parenting and
maintenance of the parties‟ minor children. The Court further finds that the
parties agree to enter into and submit a Permanent Parenting Plan no later
than January 7, 2014.
The court therefore granted the parties an absolute divorce on the basis of irreconcilable
differences.
A review of the statutory requirements listed in Tennessee Code Annotated § 36-
4-103(b) demonstrates that the trial court‟s final decree satisfies those requirements. The
statute requires an affirmative finding by the trial court that “the parties have made
adequate and sufficient provision by written agreement for the custody and maintenance
of any children of that marriage and for the equitable settlement of any property rights
between the parties.” Tenn. Code Ann. § 36-4-103(b). Such a finding was made in this
case, based on the execution of a signed, notarized MDA and a signed, written agreed
parenting plan, even though such parenting plan was designated as “temporary.” The
existence of these signed agreements distinguishes this case from Trew and, along with
the proper affirmative findings of adequacy and sufficiency by the court contained in the
final decree, satisfies the requirements of Tennessee Code Annotated § 36-4-103(b). See
also Vaccarella v. Vaccarella, 49 S.W.3d 307, 314 (Tenn. Ct. App. 2001) (holding that
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the trial court‟s finding that the parties‟ written marital dissolution agreement was “fair
and just and equitable and [was] in the best interest of said parties involved” was
sufficient to satisfy the statutory requirements of Tennessee Code Annotated § 36-4-
103(b)); Brown v. Brown, 863 S.W.2d 432, 436 (Tenn. Ct. App. 1993) (holding that the
trial court‟s finding that the parties‟ written marital dissolution agreement was “proper
and equitable and the Court hereby approves, ratifies, and confirms said Agreement” was
sufficient to satisfy the statutory requirements of Tennessee Code Annotated § 36-4-
103(b)). For these reasons, we determine that the final decree based on the grounds of
irreconcilable differences should not be declared void.
We now turn to Mother‟s second issue, which is whether the trial court erred by
failing to treat the “temporary” parenting plan concomitantly entered with the final decree
as a permanent parenting plan, such that any subsequent changes thereto would require a
modification hearing. In support of her position, Mother relies upon this Court‟s
opinions in Davidson v. Davidson, No. M2009-01990-COA-R3-CV, 2010 WL 4629470
at *2 (Tenn. Ct. App. Nov. 15, 2010), and Gentry v. Gentry, No. E2013-01038-COA-R9-
CV, 2014 WL 2442937 at *1 (Tenn. Ct. App. Feb. 5, 2014). In Davidson, the trial court
entered a final judgment of divorce and incorporated a parenting plan that the court
designated as a “temporary order on custody,” noting that the court wished to “monitor”
the mother‟s behavior. See 2014 WL 2442937 at *1. The Davidson trial court
subsequently reviewed the order twice and entered two successive permanent parenting
plan orders in an effort to respond to changes in the mother‟s mental health progress in
terms of her ability to parent the children. See id. at *4-6.
On appeal, this Court vacated the two later orders, which had purported to modify
the parenting plan entered with the final judgment for divorce, and nullified the portion of
the divorce judgment in which the trial court had deemed the parenting plan “temporary.”
Id. at *5. (“The trial court lacked authority to maintain indefinite control over the
parenting plan, and the court‟s language in paragraph (2)(h), calling the plan temporary,
does not undermine the finality of the Permanent Parenting Plan Order which was
incorporated into the Final Decree of Divorce.”). The Davidson court relied upon the
provisions of Tennessee Code Annotated § 36-6-404(a) (2014), the statute governing
parenting plans, which states in pertinent part:
Any final decree or decree of modification in an action for absolute
divorce, legal separation, annulment, or separate maintenance involving a
minor child shall incorporate a permanent parenting plan; . . . .
Similarly, in Gentry, 2014 WL 2442937 at *1, the trial court incorporated a
permanent parenting plan into the final judgment for divorce but stated in its judgment
that the matter would be reviewed in twelve months to determine if it would be in the
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children‟s best interest to grant additional co-parenting time to the father. In response to
a subsequent petition to modify the parenting plan filed by the father, the Gentry trial
court entered an order purporting to correct an error by converting the permanent
parenting plan incorporated into the final decree to a temporary parenting plan. Id. at *1-
2. The mother sought and was granted permission for an interlocutory appeal. Id. at *2.
This Court reversed the trial court‟s order, which purported to modify the permanent
parenting plan to a temporary one, and remanded for a hearing regarding the father‟s
petition to modify the permanent parenting plan. Id. at *5. Citing Davidson with
approval, this Court explained:
Davidson is directly on point with respect to the case now before us.
Similarly, in this case, the parenting plan order incorporated into the trial
court‟s March 12, 2012, order is the statutorily required permanent
parenting plan. The trial court was without authority to later modify it to
make it “temporary,” and its order to that effect is of no legal consequence.
Id. at *3 (citing Davidson, 2010 WL 4629470). The Gentry Court also cited the
following explanation from Davidson with approval:
The authority of a trial court to enter a temporary parenting plan is set forth
in Tenn. Code Ann. § 36-6-403 which states, “[e]xcept as may be
specifically provided otherwise herein, a temporary parenting plan shall be
incorporated in any temporary order of the court in actions for absolute
divorce, legal separation, annulment, or separate maintenance involving a
minor child . . . .” Tenn. Code Ann. § 36-6-403 (2005) (emphasis added).
A trial court is to make a final, “permanent” decision on parental
responsibility when it enters the final order on divorce; temporary parenting
plans are reserved for temporary orders pending the final hearing.
Gentry, 2014 WL 2442937 at *3 (quoting Davidson, 2010 WL 4629470 at *5) (emphasis
originally in Davidson).
We agree with this analysis. As our Supreme Court has instructed regarding the
proper construction of statutes:
The primary objective of statutory construction is to determine the intent of
the legislature and give effect to that intent. Walker v. Sunrise Pontiac-
GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). To achieve this
objective, we begin by examining the language of the statute in question.
Curtis v. G.E. Capital Modular Space, 155 S.W.3d 877, 881 (Tenn. 2005).
This Court presumes that the legislature intended every word be given full
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effect. Lanier v. Rains, 229 S.W.3d 656, 661 (Tenn. 2007). Therefore, if
the “language is not ambiguous . . . the plain and ordinary meaning of the
statute must be given effect.” In re Adoption of A.M.H., 215 S.W.3d 793,
808 (Tenn. 2007). It is a further well-settled rule of construction that
“statutes „in pari materia‟—those relating to the same subject or having a
common purpose—are to be construed together, and the construction of one
such statute, if doubtful, may be aided by considering the words and
legislative intent indicated by the language of another statute.” Wilson v.
Johnson Cnty., 879 S.W.2d 807, 809 (Tenn. 1994).
Graham v. Caples, 325 S.W.3d 578, 581-82 (Tenn. 2010). Therefore, construing
Tennessee Code Annotated § 36-6-403 and -404(a) in tandem, it is clear that a trial court
cannot enter a temporary parenting plan concomitant with a final decree of divorce.
Our Supreme Court has likewise made clear that “every final decree in a divorce
action in Tennessee involving a minor child must incorporate a permanent parenting
plan.” Armbrister v. Armbrister, 414 S.W.3d 685, 696 (Tenn. 2013). Based upon the
guidance of Gentry and Davidson, as well as the pertinent statutory provisions quoted
above, we determine that the trial court herein similarly lacked authority to enter a
“temporary” parenting plan concomitant with the parties‟ final decree of divorce. We
therefore conclude that the provisions in the parties‟ final decree designating the
parenting plan as “temporary” and contemplating the entry of a subsequent “permanent”
parenting plan are of no consequence. We also conclude that the “temporary” parenting
plan entered in December 2013 concomitant with the final decree must constitute the
permanent parenting plan in this matter.
Father insists that Gentry and Davidson are factually distinguishable from the
instant action because the parties in those cases did not agree to enter a temporary
parenting plan with the final judgment for divorce. Although this factual distinction is
accurate, it appears from a review of the applicable case law that this is a distinction
without a legal difference. In Gentry, this Court cites extensively to our Supreme Court‟s
“comprehensive guidance” provided in Armbrister “on how courts should balance the
needs for finality and flexibility in parenting plans . . . .” Gentry, 2014 WL 2442937 at
*4. See Armbrister, 414 S.W.3d at 696 (“[E]very final decree in a divorce action in
Tennessee involving a minor child must incorporate a permanent parenting plan.”).
Furthermore, the controlling statutory provisions mandate the entry of a permanent
parenting plan, rather than a temporary plan, with the entry of a final decree without
regard to whether the divorce is agreed.
In the alternative, Father contends that if this Court determines that the parenting
plan entered with the final decree of divorce be considered a permanent parenting plan,
the case should be remanded for a hearing regarding modification of the plan. We agree
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with Father‟s general contention. As this Court elucidated in Davidson:
Once the trial court enters a permanent parenting plan, the residential
placement schedule is res judicata as to the facts in existence or reasonably
foreseeable when the decision was made. It cannot be modified unless
there has been a material change in circumstances that makes a change in
the child‟s best interest.
Davidson, 2010 WL 4629470 at *5 (internal citations omitted). We note, however, that
the record contains no modification petition filed by Father. If such an action is
instituted, a full evidentiary hearing regarding modification should then be conducted by
the trial court. See Gentry, 2014 WL 2442937 at *5 (remanding for a hearing on the
father‟s petition to modify the parenting plan when the father had filed such a petition).
We conclude that the December 2013 parenting plan is currently the controlling
permanent parenting plan at this time. Any subsequent parenting plans entered by the
trial court herein are vacated due to the lack of findings by the court regarding a material
change of circumstances necessary for the grant of a modification. See Davidson, 2010
WL 4629470 at *6.
V. Remaining Issues
Based on our ruling vacating the subsequent parenting plans entered by the trial
court, we determine Mother‟s third and fourth issues to be pretermitted as moot. In her
appellate brief‟s conclusion section, Mother also requested an award of attorney‟s fees on
appeal. We note, however, that Mother did not raise this as an issue in her statement of
the issues. As our Supreme Court has explained:
Appellate review is generally limited to the issues that have been presented
for review. Tenn. R. App. P. 13(b); State v. Bledsoe, 226 S.W.3d 349, 353
(Tenn. 2007). Accordingly, the Advisory Commission on the Rules of
Practice and Procedure has emphasized that briefs should “be oriented
toward a statement of the issues presented in a case and the arguments in
support thereof.” Tenn. R. App. P. 27, advisory comm‟n cmt.
Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012). Because Mother did not raise the
issue of attorney‟s fees on appeal in her statement of the issues, we determine this issue
to be waived. See Champion v. CLC of Dyersburg, LLC, 359 S.W.3d 161, 163 (Tenn. Ct.
App. 2011).
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VI. Conclusion
For the foregoing reasons, we vacate the trial court‟s permanent parenting plans
entered in April and August 2014 and reinstate the parenting plan entered in December
2013, concomitant with the final decree, as the controlling permanent parenting plan in
this case. Costs on appeal are assessed to the appellee, Christopher Michael Rigsby.
This case is remanded to the trial court, pursuant to applicable law, for enforcement of
this Court‟s judgment and collection of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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