                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                       April 7, 2015 Session

                DOMINICK J. LEONARDO v. ASHLI LEONARDO

                      Appeal from the Circuit Court for Davidson County
                      No. 11D3328   Amanda Jane McClendon, Judge


                   No. M2014-00372-COA-R3-CV – Filed June 18, 2015


J. STEVEN STAFFORD, P.J., W.S., concurring in part and dissenting in part:

       I concur in the majority Opinion‟s ruling with regard to the modification of the
parties‟ parenting plan to allow Father more time with the child. I must, however, dissent
from the majority‟s holding that the trial court did not err in modifying Mother‟s child
support obligation, where no pleadings were filed notifying Mother that the issue would
be tried, no opportunity to conduct discovery on the issue, and no opportunity to present
evidence to the trial court concerning modification of child support. For this reason, I
must respectfully file this partial dissent from the majority Opinion.
        The procedural history of this case relative to child support is not contested. Father
filed a petition to modify the parties‟ parenting plan to be allowed more time with the
child, but did not request that the trial court consider a modification of child support
relative to the requested change. During trial, Mother‟s tax returns were admitted into
evidence solely for the purpose of establishing that Mother failed to comply with court
orders requiring her to submit her tax returns to Father;1 Mother‟s most recent tax return
showed that her monthly income had increased from $6,570.00 to $14,352.64. At the
conclusion of the hearing on Father‟s request to increase his parenting time with the
child, the trial court took the matter under advisement. Shortly thereafter, the trial court
made an oral ruling via telephonic conference with the parties‟ attorneys. In that ruling,
the trial court, without a request from either party, ruled that the parties were required to
come to an agreement regarding “[i]ssues of support[,]” and that if no agreement could be
reached, the trial court would decide the issue. Mother‟s counsel objected on the basis
that Father‟s petition included no request to modify child support. The trial court

1
  The trial court made no specific findings in its final order regarding Mother‟s alleged failure to comply
with court orders.
indicated that the parties could come to that agreement, but that it did not “have a choice”
in whether to modify child support. Regardless, the trial court indicated that testimony
may be required to resolve that issue. It appears from the record that the parties were
unable to come to an agreement regarding child support. Rather than having a hearing on
the issue, Father filed a proposed order with the trial court reflecting the trial court‟s oral
ruling; in addition, the order included a proposed parenting plan that calculated Mother‟s
child support obligation based upon the tax information admitted in the trial on the
visitation dispute. Mother filed an objection to the proposed order, arguing, inter alia,
that Father waived modification of child support by not requesting such relief in his
petition and that she should be permitted additional time for discovery to obtain
information concerning Father‟s income. The trial court subsequently entered a final
order on the visitation dispute, which included a provision setting Mother‟s child support
based upon an income of $14,352.64. On appeal, Mother asserts that the trial court was
not permitted to modify the parties‟ child support obligations absent a pleading seeking
such modification by Father.
        In this case, the majority Opinion focuses its analysis on the various statutes and
regulations concerning modifications of visitation to conclude that the significant change
in the parties‟ residential schedule was a triggering event for modifying child support.
Although the majority Opinion cites several authorities that suggest that modifying a
residential schedule may be a triggering event for a modification of child support, I note
that there are several authorities that do not support this holding. First, it is well-settled
law in Tennessee that a judgment is void where it is rendered “wholly outside of the
pleadings, and no binding consent thereto is shown in the record.” Andrews v. Fifth
Third Bank, 228 S.W.3d 102, 107 (Tenn. Ct. App. 2007) (citing Gentry v. Gentry, 924
S.W.2d 678, 680 (Tenn. 1996)). Here, Father undisputedly filed no pleadings requesting
modification of the parties‟ child support obligations. Indeed, Father asserted that he
would not seek a modification of child support so long as he was permitted to exercise
additional time with the child. Accordingly, this law suggests that the trial court‟s ruling
on child support could be declared void.
       The majority Opinion holds, however, that a request to modify a residential
schedule contained within a parenting plan is sufficient to trigger the court‟s authority to
modify the parties‟ child support obligations because the Court is required to establish a
child support order when it enters a new parenting plan. From my review, the Tennessee
Rules and Regulations governing child support do not necessarily support the majority‟s
holding. For example, Tennessee Rule and Regulation 1240-02-04-.01 specifically
outlines the situations where the Child Support Guidelines “shall be applied” to establish
or modify a child support award. These situations include divorce or separate
maintenance actions, paternity determinations, actions involving orders for custody of
child, “any other actions in which the provision of support for children is established by
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law,” and actions involving interstate enforcement of custody awards involving the
previous outlined actions. Tenn. Com. R. & Regs. 1240-02-04-.01(2)(b)(1–6). Notably
missing from the list of actions is an action to modify a residential parenting schedule. In
addition, other courts faced with the same question have held that modification is not
appropriate “unless the issue of modification is presented to [the opposing party] in
appropriate proceedings and each party is given an opportunity to be heard on such
issue.” Cortina v. Cortina, 98 So.2d 334, 336 (Fla. 1957) (“It is fundamental that a
judgment upon a matter entirely outside of the issues made by the pleadings cannot stand;
and where, as here, an issue was not presented by the pleadings nor litigated by the
parties during the hearing on the pleadings as made, a decree adjudicating such issue is,
at least, voidable on appeal.”); see also Landa v. Landa, 539 So. 2d 543, 544 (Fla. Dist.
Ct. App. 1989) (“We reverse that part of the order on review as it relates to the amount of
the child-support payments because that subject was not before the court by a pleading or
prior notice.”) (citing Margulies v. Margulies, 528 So.2d 957 (Fla. 3d DCA 1988)
(holding that a trial court violates a litigant‟s due process rights when it addresses matters
not noticed for a hearing)).
        Even assuming that the trial court was authorized to consider a modification of the
parties‟ child support obligations due to the significant change in the parties‟ residential
schedule with the child, the question remains as to whether Mother received adequate
notice that child support would be at issue. While the issue of what process is due in the
modification of child support context has not been thoroughly addressed by the
Tennessee Supreme Court or other courts of this State, the Tennessee Supreme Court did
consider the process that was due in a similar situation: modification of custody. See
Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002). Specifically, in Keisling v.
Keisling, the Tennessee Supreme Court held that due process required, at a minimum, a
pleading filed by a party in order for custody of a child to be changed. In that case,
mother filed a petition to modify father‟s visitation due to allegations of sexual abuse. 2
Two weeks after the filing of the petition, before father had filed any response to
mother‟s petition, the trial court had what it characterized as an “emergency hearing,”
which lasted three days. At the hearing, father‟s counsel orally indicated that he intended
to renew a prior petition to change custody to father based on mother‟s meritless
accusations. Id. at 376. At the conclusion of mother‟s proof, the trial court denied
mother‟s request for relief, finding that father had not sexually abused the children. The
trial court then orally directed that custody of the children would temporarily be changed
to father, despite the fact that no pleading had been filed seeking such relief. The trial

2
  This was mother‟s second petition seeking modification of father‟s visitation due to sexual abuse
allegations. The first petition was resolved when the trial court found that father did not sexually abuse
the children.

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court stated that its decision to change custody was based upon father‟s oral petition and
directed father to promptly file a written petition to “get our record clear.”3 Mother
sought an extraordinary appeal of the trial court‟s ruling. Id. at 377.
       On appeal, the Tennessee Supreme Court held that because of the substantial risk
that a parents‟ child will be removed from his or her care erroneously, due process
required, at a minimum, a pleading be “filed informing the parent that a change in
custody is being contemplated by the court.” Id. at 378. Accordingly, in the absence of a
pleading indicating that a change of custody is at issue, due process prevents the court
from considering that issue.
       No Tennessee cases have ever specifically held that the Keisling rule is applicable
in the modification of child support situation. Indeed, the Keisling Court recognized that
“[d]ue process is a flexible concept that „calls for such procedural protections as the
particular situation demands.‟” Id. at 377 (quoting Wilson v. Wilson, 984 S.W.2d 898,
902 (Tenn. 1998)). To be sure, the right to custody of one‟s children, the risk of
erroneous deprivation of that custody, and the government‟s interest in protecting
children is somewhat more substantial in a child custody proceeding than in a child
support modification proceeding. See Keisling, 92 S.W.3d at 377–88 (noting that in
determining what process is due, the court must consider: “(1) the private interest at
stake; (2) the risk of erroneous deprivation of the interest through the procedures used
and the probable value, if any, of additional or substitute procedural safeguards; and
finally (3) the government‟s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail”). However, we note that Keisling involved only a temporary order, rather than a
permanent order that could only be changed by showing changed circumstances.
Regardless of the exact due process required in the child support context, however,
Tennessee law is clear that due process requires, at a minimum, “notice reasonably
calculated under all the circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections.” Keisling, 92 S.W.3d at
377 (quoting State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993)). The question then
becomes whether Mother received these minimum due process guarantees.
      A similar situation was recently considered by the Court of Appeals of Arizona in
Heidbreder v. Heidbreder, 230 Ariz. 377, 284 P.3d 888 (Ariz. Ct. App. 2012). In
Heidbreder, mother filed a petition to modify custody. At the conclusion of the hearing
on mother‟s petition, the trial court: (1) modified custody to provide that father would
only have supervised time with the child; and (2) sua sponte raised the issue of child
support and modified father‟s child support obligation in his favor. Id. at 890. On appeal,

3
    Father eventually filed a written motion to change custody.
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mother first argued that the trial court was not authorized to modify the parties‟ existing
child support obligation because neither party filed any pleading seeking modification of
child support. The Arizona Court of Appeals, like the majority in this case, concluded
that the trial court was authorized to consider the issue of child support once the parties‟
custody arrangement was modified. As support, the Arizona Court of Appeals cited an
Arizona statute that provided: “[f]or any custody order entered under this article, the
court shall determine an amount of child support[.]”4 Id. at 891 (citing Ariz. Rev. Stat.
Ann. § 25-403.09(A)). Thus, the Arizona Court of Appeals concluded that “once the
court granted [m]other‟s petition to modify custody, it was required to address child
support.” Heidbreder, 284 P.3d at 890–91.
       Regardless of whether the trial court was authorized to modify the parties‟ child
support obligations, however, the Arizona Court of Appeals concluded that the trial
court‟s consideration of this issue was in violation of mother‟s due process rights, where
mother was not given advance notice that the issue would be considered and an
opportunity to respond. According to the Court:
                        Although the court had the authority to modify child
                support under A.R.S. § 25–403.09, entry of the modification
                order under the circumstances of this case deprived [m]other
                of her due process right to adequate notice and a meaningful
                opportunity to be heard. See Wallace v. Shields, 175 Ariz.
                166, 174, 854 P.2d 1152, 1160 (App.1992). Nothing in
                A.R.S. § 25–403.09 requires that the issue of child support be
                determined at the same hearing as the hearing on child
                custody; the statute does not preclude the parties from filing
                briefs or requesting a separate hearing on the issue of child
                support. In Cook v. Losnegard, 228 Ariz. 202, 265 P.3d 384
                (App.2011), this court reversed a trial court‟s modification of
                child support on the grounds the mother received inadequate
                notice that the court would address the issue of child support
                at trial. Here, as in Losnegard, [m]other was unprepared to
                address the child support modification because she received


4
    I note that the language in the statute that led the Heidbreder Court to conclude that a change in
custody was a triggering event for modification of child support is more explicit than the language relied
upon by the majority Opinion. None of the authorities cited by the majority indicates that a Tennessee
court “shall determine an amount of child support” whenever a parenting plan is modified. See id. at 891
(citing Ariz. Rev. Stat. Ann. § 25-403.09(A)). Indeed, that does not appear to be the case even in
Arizona, where the Heidbreder Court held that a change in custody, rather than a change in a visitation
schedule, was a triggering event for modification of child support. Heidbreder, 284 P.3d at 891.
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              inadequate notice that the court would address child support
              at the custody hearing.
                     A trial court errs if it modifies child support without
              conducting a hearing or allowing the parties to gather and
              present their evidence. The court in this case recognized that
              “neither party was substantially prepared to present
              information regarding the issue of child support” at the
              hearing. Nonetheless, the trial court proceeded without
              allowing Mother an opportunity to prepare and submit
              evidence relating to child support. The court also denied
              Mother's request to file a short brief on the issue of child
              support.
                     Directing the parties to file financial affidavits after the
              hearing was not a proper substitute for providing the parties a
              full opportunity to be meaningfully heard. See Wallace, 175
              Ariz. at 174, 854 P.2d at 1160 (stating that due process
              requires “minimum notice requirements” and “an opportunity
              to be heard at a meaningful time in a meaningful manner”).
Heidbreder, 284 P.3d at 892 (footnote omitted) (some internal citations omitted). Thus,
the Heidbreder Court held that while the trial court may have been authorized to modify
child support based on the change in the parties‟ custody arrangement, that fact did not
excuse the court from ensuring that mother received both adequate notice that the child
support issue would be considered and an opportunity to be meaningfully heard. Because
the trial court did not convene a separate hearing on the issue to allow mother to prepare
and submit evidence relating to child support, the Heidbreder Court held that her due
process rights were violated. Accordingly, the Court vacated the trial court‟s ruling with
regard to child support and remanded for additional briefing and/or a hearing on that
issue. Id. at 892–93.
        Although not controlling on this Court, the decisions of our sister states constitute
persuasive authority that this Court may consider. See Nashville Elec. Serv. v. Luna, 185
Tenn. 175, 182, 204 S.W.2d 529, 532 (Tenn. 1947). I find the decision in Heidbreder
highly persuasive due to the exceedingly similar facts presented by this case. First, like in
Heidbreder, neither party in this case filed a petition that in any way sought a change in
the parties‟ child support obligations. In addition, from my review of the transcript of the
trial court‟s telephonic ruling, like the trial court in Heidbreder, the trial court raised the
issue of child support sua sponte. Additionally, it appears from the record that Mother
immediately objected to the modification of child support. Later, on February 3, 2014,

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Mother filed a formal motion asking the court to allow additional discovery on this issue
and to allow her to present evidence in opposition to modification. According to Mother‟s
motion:
              Because [Father] stated explicitly that he was not requesting a
              modification of child support, there was no discovery
              conducted concerning [Father‟s] claimed income, nor was
              there any proof submitted to the Court of [Father‟s] income.
              [Father] is self-employed as an attorney, and determining
              income for child support purposes of a self-employed
              individual is usually more complicated than simply reviewing
              the bottom line on a tax return. [Mother] is entitled to an
              opportunity to review [Father‟s] income prior to the entry of
              an Order establishing that income for child support purposes.
              Additionally, child support is not automatically recalculated
              upon the changing of a parenting schedule, since parties may
              agree to deviate upwards or downwards in child support.

Despite this motion, the trial court entered an order the following day that modified the
parties‟ child support obligations without an evidentiary hearing on the child support
issue and without any mention of Mother‟s request for additional discovery. Thus, much
like the mother in Heidbreder, after Mother was informed that modification of child
support was triggered by the modification of the parties‟ residential schedule, she was
given no opportunity to conduct additional discovery or have an evidentiary hearing on
the issue. Indeed, even more troubling than in Heidbreder, where the trial court directed
the parties to file financial affidavits, the trial court here simply utilized evidence
admitted in the previous trial for an entirely different purpose, and nothing in the record
indicates that it required that Father submit updated evidence regarding his income.
        Because Mother was clearly not given sufficient notice that a modification of child
support was at issue and she was given no opportunity to respond to the trial court‟s sua
sponte decision to modify child support, I must conclude that the trial court proceedings
failed to comply with due process. Accordingly, even assuming arguendo, that the issue
of child support modification was triggered by the substantial change in the parties‟
residential schedule, I would vacate the trial court‟s judgment and remand for additional
discovery and an evidentiary hearing on this issue. For this reason, I must respectfully
dissent in part from the majority Opinion.


                                                 _________________________________
                                                 J. STEVEN STAFFORD, JUDGE
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