                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 February 5, 2014 Session

      KIRBY MIRANDA GENTRY v. MICHAEL ANTHONY GENTRY

           Interlocutory Appeal from the Circuit Court for Bradley County
                      No. V-10-249     J. Michael Sharp, Judge


                 No. E2013-01038-COA-R9-CV-FILED-MAY 28, 2014


In this post-divorce case, the trial court entered an order on March 12, 2012, incorporating
a permanent parenting plan. The order states that “[t]his matter shall be reviewed in one
year.” On April 18, 2013, the court entered an order stating that “the Court, sua sponte, finds
that the Permanent Parenting Plan attached to the Order of [March 12, 2012], should in fact
be a Temporary Parenting Plan and by this Order [the court] corrects such.” We hold that
under Tenn. Code Ann. § 36-6-404(a) (2010), which provides that “[a]ny final decree or
decree of modification in an action for absolute divorce . . . involving a minor child shall
incorporate a permanent parenting plan,” the parenting plan incorporated by the trial court’s
March 12, 2012 order was a permanent plan. Because of the mandatory statutory language,
the trial court was without authority to subsequently “convert” it to a temporary parenting
plan. Consequently, we reverse the judgment of the trial court.

                Tenn. R. App. P. 9 Interlocutory Appeal by Permission;
               Judgment of the Circuit Court Reversed; Case Remanded

C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Philip M. Jacobs, Cleveland, Tennessee, for the appellant, Kirby Miranda Gentry.

No appearance by, or on behalf of, Michael Anthony Gentry.
                                         OPINION

                                              I.

       The parties, Kirby Miranda Gentry (“mother”) and Michael Anthony Gentry
(“father”), were divorced by entry of a December 14, 2010, order designated as a “final
decree.” The divorce decree named mother the primary residential parent, granted father co-
parenting time, set father’s child support obligation, and further stated as follows:

              This matter shall be reviewed in twelve (12) months to
              determine if it is in the best interest of the minor child for
              [father] to have additional co-parenting time.

              The Court will adopt whatever Permanent Parenting Plan that is
              in the best interest of the minor child at the review hearing in
              twelve (12) months.

        Time passed. After a later hearing on February 13, 2012, the trial court entered an
order on March 12, 2012, providing (1) that mother would remain the primary residential
parent; (2) that father’s child support payment was adjusted; and (3) that a permanent
parenting plan as approved by the court was incorporated into the order. The trial court
utilized a standard parenting plan form. See Tenn. Code Ann. § 36-4-404(d) (“The
administrative office of the courts shall develop a ‘parenting plan’ form that shall be used
consistently by each court within the state that approves parenting plans pursuant to §
36-6-403 or 36-6-404”) (footnote omitted). The March 12, 2012, order also stated, however,
that “[t]his matter shall be reviewed in one year.”

       On April 3, 2013, father filed a petition to modify the parenting plan, asking the trial
court to grant him more co-parenting time. On April 18, 2013, the trial court entered an
order stating, in pertinent part, as follows:

              The Court has reviewed its notes of the [h]earing of February
              13, 2012, from and after the [h]earing date of February 25, 2013,
              and finds that the Order [of March 12, 2012] was not intended
              to be a Final Order. It was intended to be left open.

              Because the Court put in place a document called a Permanent
              Parenting Plan, but also indicated that a review would occur in
              one (1) year, the Court’s intent was that such was not a



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              Permanent Parenting Plan but in fact a Temporary Parenting
              Plan.

              Because of the above, the Court[,] sua sponte, finds that the
              Permanent Parenting Plan attached to the Order of [March 12,
              2012], should in fact be a Temporary Parenting Plan and by this
              Order corrects such, pursuant to T.R.C.P. 60.01 consistent with
              the Court’s intent stated herein.

(Italics in original.) Mother filed a motion for an interlocutory appeal pursuant to Tenn. R.
App. P. 9, which the trial court granted.

                                              II.

       Mother raises the following issues, as quoted from her brief:

              1. Did the trial court err in failing to adopt a permanent
              parenting plan, when the original divorce decree was entered on
              December 14, 2010, and in maintaining the issue of a permanent
              parenting plan for twelve month reviews?

              2. Did the trial court err in setting aside the permanent parenting
              plan entered [March 12, 2012], based upon the trial court’s
              intent that it was to have been an additional temporary parenting
              plan to again be reviewed in twelve months?

These issues involve questions of law, which we review de novo. See Tenn. R. App. P.
13(d); Westgate Smoky Mountains at Gatlinburg v. Phillips, No. E2011-02538-SC-R11-
CV, 2013 WL 6800358 at *2 (Tenn., filed Dec. 23, 2013). There are no disputed facts on
this appeal.

                                             III.

       The governing statute in this case is clear and unambiguous. It states, in pertinent
part, as follows: “[a]ny 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[.]” Tenn. Code Ann. § 36-6-404(a) (emphasis
added). “As a general matter, when the word ‘shall’ is used in a statute it is construed to be
mandatory, not discretionary.” Home Builders Ass’n of Mid. Tenn. v. Williamson Cnty.,



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304 S.W.3d 812, 819 (Tenn. 2010); accord Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300,
308 (Tenn. 2012); Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281
(Tenn. 2009). We have observed on several occasions that “Tenn. Code Ann. § 36-6-404(a)
requires that a permanent parenting plan be incorporated into any final decree in an action
for absolute divorce involving a minor child.” Estes v. Estes, No. M2010-02554-COA-R3-
CV, 2011 WL 4729862 at *8 (Tenn. Ct. App. M.S., filed Oct. 7, 2011); see also Gentry v.
Gentry, No. W2004-00640-COA-R3-CV, 2005 WL 901145 at *5 (Tenn. Ct. App. W.S., filed
Apr. 18, 2005). The Supreme Court has also recently noted 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). Under these
authorities, the trial court was obligated to include a permanent parenting plan in its final
divorce judgment of December 14, 2010.1

       In the case of Davidson v. Davidson, No. M2009-01990-COA-R3-CV, 2010 WL
4629470 (Tenn. Ct. App. M.S., filed Nov. 15, 2010), we addressed a similar factual situation
and essentially the same issue. We stated the following:

                In the Final Judgment of Divorce the trial court approved a
                permanent parenting plan and made it the order of the court;
                however, the trial court purported to make the plan temporary by
                stating:

                        (2)(h). This custody arrangement is only
                        temporary. The Court had considered giving the
                        Husband five (5) days per week and the Wife two
                        (2) days per week but the Court wants to see
                        progress made by the Wife. This is a temporary
                        order on custody because the Court is going to
                        continue to monitor the Wife’s progress. If the
                        custody arrangement does not work, then the
                        Court shall change the arrangement to Husband
                        having the children five (5) days per week and the
                        Wife having only two (2) days per week. If there
                        is any conflict, or any acting out on the part of the
                        Wife, or if the Wife puts any more heartbreak on
                        these children, the Court will consider more
                        extreme measures. . . . The Court expects a


        1
         The court did correctly designate the parenting plan adopted and incorporated in its March 12, 2012
order as a permanent parenting plan.

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                     concerted effort on the Wife’s part to take care of
                     her personality disorders that cause her to act the
                     way she does.

              Tenn. Code Ann. § 36-6-404(a), entitled “Requirement of and
              Procedure for Determining Permanent Parenting Plan,”
              however, mandates the court to incorporate a permanent
              parenting plan with any final decree in an action for absolute
              divorce. See Tenn. Code Ann. § 36-6-404(a) (2005). 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.

              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. Consequently,
              section (2)(h) of the October 2008 order is of no effect and the
              parenting plan order entered with and incorporated into the Final
              Judgment of Divorce was the permanent parenting plan required
              by Tenn. Code Ann. § 36-6-404(a).

2010 WL 4629470 at *5 (footnotes omitted; emphasis in original). 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.

      It is clear that the trial court had only the best intentions in trying to strike the
appropriate balance between the finality of a permanent parenting plan order, and its



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attendant desirable stability, consistency, and predictability, and the flexibility needed to
adapt to changing circumstances. The court stated,

              when we began this when the final decree went down in
              December of 2010 and I put an order in place I had two . . .
              young parents, one of whom was I thought at the time struggling
              with some post-military, getting-out-and-getting-on-with-life
              issues, but I put a specific provision in place at that time that this
              matter was to be reviewed in 12 months to determine if it was in
              the best interest of the minor child for the [father] to have any
              additional co-parenting time. . . . And my intention was to see if,
              frankly, if Dad could grow up some and mature up some and get
              us to a better point. Because my position is all children, if their
              parents will let them, need as much and as good a relationship
              with both parents, if both parents will do the right thing, with
              their child. That’s what I was intending to do.

       In Armbrister, the Supreme Court set forth comprehensive guidance on how courts
should balance the needs for finality and flexibility in parenting plans, stating as follows in
pertinent part:

              Once a permanent parenting plan has been incorporated in a
              final divorce decree, the parties are required to comply with it
              unless and until it is modified as permitted by law. See Tenn.
              Code Ann. § 36-6-405 (2010). In assessing a petition to modify
              a permanent parenting plan, the court must first determine if a
              material change in circumstances has occurred and then apply
              the “best interest” factors of section 36-6-106(a). Finally,
              pursuant to the modification procedures described in section 36-
              6-405(a), the court must apply the fifteen factors of section 36-
              6-404(b), so as to determine how, if at all, to modify the
              residential parenting schedule.

                                     *       *         *

              The 2004 legislation, which is now codified at Tennessee Code
              Annotated section 36-6-101(a)(2)(C) (2010) and is applicable in
              this appeal, provides:




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       (C) If the issue before the court is a modification
       of the court’s prior decree pertaining to a
       residential parenting schedule, then the petitioner
       must prove by a preponderance of the evidence a
       material change of circumstance affecting the
       child’s best interest. A material change of
       circumstance does not require a showing of a
       substantial risk of harm to the child. A material
       change of circumstance for purposes of
       modification of a residential parenting schedule
       may include, but is not limited to, significant
       changes in the needs of the child over time, which
       may include changes relating to age; significant
       changes in the parent’s living or working
       condition that significantly affect parenting;
       failure to adhere to the parenting plan; or other
       circumstances making a change in the residential
       parenting time in the best interest of the child.

Tenn. Code Ann. § 36-6-101(a)(2)(C). Some of the factors
listed in section 36-6-101(a)(2)(C) as constituting a material
change in circumstances for modification of a residential
parenting schedule are not listed in section 36-6-101(a)(2)(B) as
a material change in circumstances for purposes of modifying a
“prior decree pertaining to custody.” Thus, as the Court of
Appeals has recognized, the 2004 amendment resulted in
Tennessee having a different set of criteria for determining
whether a material change in circumstances exists for
modification of a “residential parenting schedule” as compared
to the standard that applies for modification of “custody” – a
statutory term the Court of Appeals has equated to the
designation of a “primary residential parent.”

As the Court of Appeals also has recognized, section 36-6-
101(a)(2)(C) sets “ ‘a very low threshold for establishing a
material change of circumstances’ ” when a party seeks to
modify a residential parenting schedule.

                     *      *         *



                                -7-
              Consistent with section 36-6-101(a)(2)(C), we hold that facts or
              changed conditions which reasonably could have been
              anticipated when the initial residential parenting schedule was
              adopted may support a finding of a material change in
              circumstances, so long as the party seeking modification has
              proven by a preponderance of the evidence “a material change
              of circumstance affecting the child’s best interest.”

                                   *      *         *

              Once a material change in circumstances affecting the children’s
              best interests has been established, a court finally must utilize
              the process prescribed by Tennessee Code Annotated section 36-
              6-404(b) to determine how the residential parenting schedule
              should be modified. . . . First, a court must determine whether
              either parent has engaged in any of the conduct described in
              section 36-6-406, which would necessitate limiting that parent’s
              residential time with the child. See Tenn. Code Ann. § 36-6-
              404(b), -406 (2010). If section 36-6-406 does not apply, a court
              must then consider the fifteen specific factors enumerated in the
              statute, id. § 36-6-404(b)(1)-(15), and may also consider “[a]ny
              other factors deemed relevant by the court,” id. 36-6-404(b)(16).

414 S.W.3d at 697-98, 702-03, 704, 706 (internal citations omitted).

       On remand, the trial court shall consider father’s petition to modify the permanent
parenting plan under the principles espoused in Armbrister.

                                              IV.

       The judgment of the trial court purporting to modify the permanent parenting plan to
a “temporary plan” is reversed. The case is remanded to the trial court for consideration of
father’s petition to modify the permanent parenting plan and for such further action as may
be necessary, consistent with this opinion. Costs on appeal are assessed to the appellee,
Michael Anthony Gentry.


                                          _____________________________________
                                          CHARLES D. SUSANO, JR., CHIEF JUDGE



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