                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                Assigned On Briefs April 16, 2013

      CHARLES WADE MCCOY v. ALISHA POINDEXTER MCCOY

            Direct Appeal from the General Sessions Court for McNairy County
                        No. 11-DV-132      Van McMahan, Judge


                      No. W2012-01503-COA-R3-CV - Filed July 22, 2013


This appeal arises from a divorce action in which the trial court denied Mother’s motion to
correct a clerical mistake in the permanent parenting plan pursuant to Rule 60.01 of the
Tennessee Rules of Civil Procedure. Mother appeals. Vacated and Remanded.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
                             Vacated and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Lisa M. Miller, Selmer, Tennessee, for the appellant, Alisha Poindexter McCoy.

T. L. Wood, Adamsville, Tennessee, for the appellee, Charles Wade McCoy.

                                   MEMORANDUM OPINION 1

                                              Background

       In January 2008, Alisha Poindexter McCoy (“Mother”) and Charles Wade McCoy
(“Father”) were married in McNairy County, Tennessee. The parties have two minor


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
children– a daughter born in 2002, and a son born in 2008. In December 2011, the parties
separated.

       On December 29, 2011, Father filed a complaint for divorce in the McNairy County
General Sessions Court. Mother filed an answer and counter-complaint for divorce on
February 9, 2012. Thereafter, on February 13, 2012, the parties agreed on the entry of a
temporary parenting plan. The temporary parenting plan provided that the parties’ son would
reside with Father primarily and Mother would have visitation every weekend, while the
parties’ daughter would reside with Mother “except for the times she chooses to visit
[Father].” In total, the temporary parenting plan provided Mother with 200 days with her
daughter and 165 days with her son, and provided Father with 200 days with his son and 165
with his daughter. The temporary parenting plan further provided that Father would pay
child support to Mother in the amount of $159.00 per month. The following day, on
February 14, 2012, Father filed an answer to Mother’s counter-complaint.

       Subsequently, on May 29, 2012, the parties attended mediation. At the conclusion of
the mediation, the parties reached an agreement on all of the issues and were referred to their
respective attorneys to prepare the necessary papers, including a permanent parenting plan.
The same day, the parties agreed to and executed a marital dissolution agreement and a
permanent parenting plan. Thereafter, on May 31, 2012, the trial court entered its final
decree of divorce in which it found that irreconcilable differences existed such that both
parties were entitled to a divorce, and further incorporated the parties’ marital dissolution
agreement and permanent parenting plan.

       On June 12, 2012, Mother filed a Motion to Correct an Error on the Permanent
Parenting Plan. In her motion, Mother alleged, in pertinent part, that:

       6.     On or about June 12, 2012, [Mother] noticed an error on the permanent
              parenting plan.

       7.     [Mother] through counsel tried to get the error corrected by agreement
              on June 12, 2012, but [Father] would not agree.

       8.     The parties agreed that the day to day visitation schedule of the
              temporary permanent parenting plan entered by the court February 13,
              2012, would be made a part of the permanent parenting plan.

       9.     The visitation in the temporary parenting plan was every weekend as
              evidenced in the plan itself as well as in the temporary child support
              worksheet allotting 165 days for visitation for the parent receiving

                                              -2-
              visitation.

       10.    The Permanent Parenting Plan reflected this agreement with the
              following error not noticed at the time of signing, the box for every
              other weekend was checked instead of every week.

       11.    On the permanent parenting plan and the child support worksheet, the
              number of days of visitation for the parent receiving visitation was 165
              days, the same as on the temporary parenting plan.

       Wherefore, Premises Considered, [Mother] prays the following:

       1.     That the court enters [sic] an order changing the permanent parenting
              plan to correct the typographical error so it reflects the actual agreement
              of the parties.

On July 17, 2012, after conducting a hearing, the trial court entered an order denying
Mother’s Motion to Correct an Error on the Permanent Parenting Plan. The trial court’s
order states, in its entirety, that:

       WHEREAS this matter came on for hearing on the 20th day of June, 2012 and
       the Court having given due consideration to arguments of counsel, the record
       before the Court, and testimony of each party, determined that the Motion
       should be dismissed,

       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, as follows:

       [Mother]'s Motion to Correct an Error on the Permanent Parenting Plan is
       denied.

       SO ORDERED this the 17 day of July, 2012.


       Thereafter, Mother timely filed a notice of appeal to this Court.

                                         Discussion

        The dispositive issue presented by Mother on appeal is whether the trial court erred
by failing to correct the alleged clerical mistake in the permanent parenting plan pursuant to



                                              -3-
Rule 60.01 of the Tennessee Rules of Civil Procedure.2 We will not disturb a trial court’s
decision to grant or deny relief under Rule 60.01 unless the trial court abused its discretion.
Jackman v. Jackman, 373 S.W.3d 535, 541 (Tenn. Ct. App. 2011) (citing SecurAmerica Bus.
Credit v. Schledwitz, No. W2009-02571-COA-R3-CV, 2011 WL 3808232, at *8 (Tenn. Ct.
App. Aug. 26, 2011)).

        Rule 60.01 of the Tennessee Rules of Civil Procedure provides, in part, that:

        Clerical mistakes in judgments, orders or other parts of the record, and errors
        therein arising from oversight or omissions, may be corrected by the court at
        any time on its own initiative or on motion of any party and after such notice,
        if any, as the court orders.

Tenn. R. Civ. P. 60.01. As this Court recently explained in Jackman v. Jackman, 373 S.W.3d
535 (Tenn. Ct. App. 2011):

        “Rule 60.01 is designed to afford relief in cases in which the judgment or
        order, either standing alone or when viewed in connection with other portions
        of the record, shows facial errors arising from oversight or omission.”
        Continental Cas. Co. v. Smith, 720 S.W.2d 48, 49 (Tenn. 1986) (quoting
        Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976)). Rule 60.01 “is
        intended to be used to correct errors in a judgment which cause the judgment
        to fail to reflect the court’s ruling accurately,” Addington v. Staggs, No. 88-
        214-II, 1989 WL 5453, at *3 (Tenn. Ct. App. Jan. 27, 1989), whether those
        errors are “inclusions, transpositions, or the leaving out of something the judge
        intended should go into the order.” Id. at *2 (citation omitted). In analyzing
        the trial court’s application of Rule 60.01, we are reminded “to strike a proper
        balance between the competing principles of finality and justice.” Continental
        Cas. Co., 720 S.W.2d at 49 (quoting Jerkins, 533 S.W.2d at 280).

Id. at 542.

        In this case, Mother argues that the permanent parenting plan failed to reflect her

        2
           On appeal, Mother argues that the trial court erred by failing to correct the alleged clerical mistake
in the permanent parenting plan under either Rule 60.01, or Rule 60.02. We note, however, that Mother
failed to provide the trial court with any citation to the Rule under which she sought relief. Upon thorough
examination of the record, it is abundantly clear that Mother sought relief pursuant to Rule 60.01. Moreover,
we find that Rule 60.02 is not applicable in this case because Mother requested correction of a clerical
mistake, as opposed to relief from the trial court’s judgment. Accordingly, our analysis is limited to whether
the trial court erred by failing to correct the alleged clerical mistake pursuant to Rule 60.01.

                                                      -4-
understanding of the parties’ agreed upon parenting arrangement because it differed from the
parenting arrangement in the temporary parenting plan. Specifically, the temporary parenting
plan provided the noncustodial parent with parenting time every weekend, while the
permanent parenting plan provided the noncustodial parent with parenting time every other
weekend. Although the weekend visitation provisions in the two plans differed, the number
of days of parenting time were the same in each plan– Mother received 200 days with her
daughter and 165 days with her son; Father received 200 days with his son and 165 days with
his daughter. Therefore, the difference in the two plans regarding weekend visitation,
according to Mother, was a clerical mistake necessitating correction by the trial court under
Rule 60.01.

        On the other hand, Father argues that the parenting arrangement in the permanent
parenting plan reflects his understanding of the agreement that the parties reached during
mediation. Despite Mother’s emphasis on the similarity between the number of days of
parenting time in each plan, Father stresses that the parties agreed to keep the number of days
the same in order to maintain the amount of child support he paid to Mother. Otherwise, if
the parties utilized a more accurate day count in the permanent parenting plan, Mother would
have received a reduction in the amount of child support she received. Thus, Father argues
that this is a clear example of parties making compromises during mediation with the advice
of counsel in an effort to reach an agreement.

       Because no transcript was available in this case, our review is limited to the Statement
of the Evidence filed by Mother pursuant to Rule 24 of the Tennessee Rules of Appellate
Procedure.3 Mother’s Statement of the Evidence provides as follows:

                                 I. Initial Settlement of the Case

              This case was settled at Mediation on May 29, 2012. Instead of a
        memorandum of understanding being prepared, the Marital Dissolution
        Agreement and the Permanent Parenting Plan was [sic] prepared at the
        mediation for the parties to sign. The final decree was not prepared at the
        mediation.




        3
         We note that Mother’s Statement of the Evidence is not in the record. Attached to Mother’s brief,
however, is a copy of her Statement of the Evidence stamp filed by the trial court clerk on September 5,
2012. The Statement of the Case in Mother’s brief states that she filed a Statement of the Evidence and that
Father filed no objections. Moreover, the Statement of the Case in Father’s brief agrees that Mother’s
Statement of the Case is accurate, with certain exceptions not germane to this issue. Therefore, we have
considered the Statement of the Evidence attached to Mother’s brief.

                                                    -5-
        [Mother] agreed to incorporate the custody and visitation arrangement
of the temporary parenting plan ordered in this case. [Mother] did review the
Permanent Parenting Plan at mediation and did sign it. She was under the
assumption that the Plan incorporated the temporary plan and that that was
what she was signing and agreeing to.

       However, once the final decree was prepared and the Judge signed off
on all the documents to finalize the divorce, she realized that there was a
mistake in the parenting plan.

      A motion to correct the error on the permanent parenting plan was filed
with the General Sessions Court on June 12, 2012, and a hearing was
conducted on June 20, 2012.

                    II. Evidence Presented at Hearing

       The hearing took place on June 20, 2012, at 2:00 p.m., in the General
Sessions Court of McNairy County, Tennessee. Judge Van McMahan presided
over the matter. The parties provided brief opening statements, and the Court
instructed the Defendant to call her first witness.

                            A. [Mother]’s Proof

                     i. Ms. Alisha Poindexter McCoy

        The first witness called by [Mother’s attorney] was [Mother]. On direct
examination, [Mother] testified that she did attend mediation in an attempt to
settle the case. She thought the case was settled. She cited to the court her
understanding of the parenting plan was that the visitation schedule would be
the same as the visitation schedule agreed to in the Temporary parenting plan
and that had been followed by the parties since February 2, 2012 until May 29,
2012.

        The temporary parenting plan provided that she would have custody of
the daughter with the father having visitation when the child choose [sic] to
visit the father. The temporary parenting plan provided that [Father] would
have custody of the son and that the mother would have every Friday from
[sic] to Monday visitation. Child Support was set within the guidelines based
upon the parties' statement of their income.



                                      -6-
       At mediation, [Mother] agreed for that visitation schedule to remain in
place with child support to be recalculated within the guidelines based upon
the verification of the parties' income using their income tax documents.

         During mediation, the permanent parenting plan was drafted by the
mediator for the parties to sign instead of a memorandum of understanding
being drawn up and signed and the paper work prepared by the attorneys after
the fact. After reviewing the plan, [Mother] testified that she thought the
papers said every week as she had agreed upon but when she got a signed copy
from the Judge realized that the papers said every other week. She testified that
at first the papers presented to her had other people's names so that it was clear
that a previous form was being used and just changes made.

       She also stated that because the marital dissolution agreement and the
permanent parenting plan were drafted at the mediation and therefore took
longer, she felt pressured in signing.

        [Mother] testified that the number of days on the temporary and the
permanent parenting plan were the same indicating her agreement of every
weekend visitation. She further stated in response to counsel's questions that
she absolutely would not have signed the plan if she thought it had stated every
other weekend visitation because what she agreed to was every weekend
visitation.

       On cross examination, [Mother] was repetitively asked about her
compliance with the marital dissolution agreement which was objected to as
relevance by her attorney, but overruled by the court. She stated she still had
one of the vehicles in her possession that was awarded to [Father], but that she
had made that month's payment. She was also asked if she and [Father] had
followed the summer visitation schedule and upon her answer of no was asked
by [Father]’s attorney why she had not gotten the child as stated in the
parenting plan for summer. Her response was that her and [Father] had reached
another agreement and was following that agreement.

       [Mother] was also asked about driving by [Father]’s home which again
was objected to as to relevance by [Mother]’s attorney, but was overruled.
[Mother] answered by saying she was checking on her children because
[Father] had refused to tell her where the child was and was [sic] watching the
child.



                                       -7-
                             B. [Father]’s Proof

                        i. Mr. Charles Wade McCoy

        The first witness called by [Father’s attorney] was [Father]. On direct
examination, [Father] testified that he had attended mediation and that the
resulting parenting pan [sic] was what he agreed to. He stated that the reason
the number of days on the parenting plan were the same as the temporary
parenting plan, was for child support purposes only. He stated that the reason
for the temporary parenting plan being every weekend visitation was because
of his employment. He stated that he worked every weekend at that time.
[Father] stated that the reason the permanent parenting plan allowed for every
other weekend visitation was because his work schedule would be changing.

        [Father] testified that [Mother] was constantly driving by his house. He
testified that the summer visitation schedule was not being followed because
[Mother] did not come get the child. He testified that they did not have another
agreement in place other than what was written in the permanent parenting
plan.

        [Father] testified that he had not gotten a vehicle he was awarded to
[sic] in the marital dissolution agreement. He testified that he was paying the
child support as ordered in the parenting plan.

       Upon cross examination of [Father] by [Mother’s attorney], [Father]
admitted that his work schedule had not changed yet but he was up for a
different job at work. [Father] admitted that the number of days in the
temporary parenting plan and the number of days in the permanent parenting
plan were the same. He further admitted that the temporary parenting plan was
every weekend visitation and that the permanent parenting plan allowed only
for every other weekend visitation.

                           III. Closing Arguments

        Both parties gave brief closing statements. [Mother] argued that what
she signed was not what she agreed to. She stated that she did not realize the
mistake until the first weekend after that Judge had signed the final papers. She
stated that the Permanent Parenting Plan reduced to writing was not what [she]
agreed to. She thought the permanent parenting plan she signed had the same
visitation schedule as the temporary parenting plan. [Father] argued that he

                                       -8-
       did not think the permanent parenting plan contained a mistake. He stated that
       the every other weekend visitation is what he agreed to that it was not a mutual
       mistake.

              After closing arguments, the court dismissed [Mother]’s motion to
       correct an error on the permanent parenting plan.

       It is undisputed that an obvious conflict exists in the permanent parenting plan
between the number of days of parenting time and the amount of child support ordered.
Rather than resolve the discrepancy, the trial court denied Mother’s motion. We believe it
was error on the part of the trial court to allow this obvious discrepancy to go unresolved.
As a result, we vacate the judgment of the trial court and remand this matter for further
proceedings.

                                        Conclusion

       For the foregoing reasons, we vacate the judgment of the trial court and remand for
further proceedings consistent with this Opinion. Costs of this appeal are taxed to the
Appellee, Charles Wade McCoy, for which execution may issue if necessary.




                                                   _________________________________
                                                   DAVID R. FARMER, JUDGE




                                             -9-
