                                                                                          07/18/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs April 3, 2018

                                 IN RE KY’AURI M.

                Appeal from the Juvenile Court for Hamilton County
                      No. 267513 Robert D. Philyaw, Judge
                     ___________________________________

                            No. E2017-00501-COA-R3-JV
                       ___________________________________

Relying on due process grounds, the mother of the parties’ child contends the juvenile
court erred by modifying the parenting plan and designating the father as the primary
residential parent. The only petition before the court was the father’s petition for
contempt. The juvenile court magistrate who presided over the initial hearing informed
the mother “that the issue before the Court was whether the mother was in contempt of
this Court and upon the Court’s own motion, if she should remain custodian of the child.”
At the conclusion of the hearing, the magistrate found “that because of the mother’s lack
of compliance and cooperation, she was in Contempt of Court and that custody of the
child would be granted to the father. . . .” The mother filed a request for rehearing in the
juvenile court, and the juvenile court judge affirmed the magistrate’s order. This appeal
followed. Because neither party petitioned the court to modify the existing permanent
parenting plan or the designation of the primary residential parent and due process
requires, at a minimum, “notice reasonably calculated . . . to apprise interested parties of
the pendency of the action and afford them an opportunity to present their objections,”
Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002) (quoting State v. Pearson, 858
S.W.2d 879, 884 (Tenn. 1993)), it was error for the juvenile court to modify the
permanent parenting plan and change the primary residential parent. As a result, we
vacate the juvenile court’s order modifying the permanent parenting plan and designating
the father as the primary residential parent and remand for further proceedings consistent
with this opinion.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which CHARLES
D. SUSANO JR. and BRANDON O. GIBSON, JJ., joined.
Emma Andrews, Chattanooga, Tennessee, for the appellant, Tiffany M. W.1

Tabitha E. Finch, Chattanooga, Tennessee, for the appellee, Robert L. M.

                                                OPINION

       Tiffany M. W. (“Mother”) and Robert L. M. (“Father”) are the parents of Ky’Auri,
who was born in May 2010. The unmarried parents never lived together, and shortly after
the child’s birth, the couple ended their relationship.

       In 2013, Father initiated proceedings in Hamilton County Juvenile Court to
establish a permanent parenting plan and specifically to set a parenting schedule for his
parenting time.2 A hearing was held May 7, 2013, during which both parents testified. In
its order entered on May 17, 2013, the juvenile court entered a permanent parenting plan
in which Mother was designated the primary residential parent, each parent was “given
the authority to consent to any educational, medical, surgical, or hospital procedure
necessary in the best interest of said child,” and Father was awarded parenting time every
other weekend as well as any other time agreed on by the parties. The order also provided
for a holiday schedule and stated that each parent was entitled to two non-consecutive
weeks of summer vacation.

       In December 2014, Father filed a petition for “sole custody” of the child. A
hearing was held January 13, 2015, during which the court ordered the parties to attend
mediation, and the matter was set for a review hearing. At the review hearing on April
10, 2015, the parties announced they had agreed to split the summer and winter breaks.
The court found that no further review was necessary, and the order entered on May 18,
2015, reflected this change to the permanent parenting plan.

        During the summer of 2015, Mother allegedly refused to split the summer break
with Father as required by the permanent parenting plan. On August 26, 2015, Father
filed a petition for contempt against Mother for her failure to comply with their parenting
plan. Father’s petition alleged that Mother violated the May 2013 order when Mother
refused to include Father in making any decisions concerning their child’s education,
including advising Father of the name and location of their daughter’s school, not listing
Father’s name on the school pickup list, and not registering their child under her legal
name. Father also alleged that Mother violated the May 2015 order by restricting Father’s
summer parenting time to two weeks.

        1
         This court has a policy of protecting the identity of children in juvenile cases by initializing the
last names of the parties.
        2
            Father lives in Nashville and Mother lives in Chattanooga.


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       This matter was heard September 16, 2015, before a juvenile court magistrate.
Although there is no verbatim transcript of the hearing and the Statement of the Evidence
Mother filed is modest, the parties’ briefs indicate that the magistrate heard testimony
from Father regarding his employment, home life and child care in his area. The court
also heard testimony from Mother that she was not willing to let the child stay with
Father more than two weeks because that was all the child could miss from daycare.
During the hearing, the magistrate noted that, according to the April 10, 2015 order, “the
parents were to split the summer parenting time equally,” and went on to state “the issue
before the Court was whether the mother was in contempt of this Court and upon the
Court’s own motion, if she should remain custodian of the child.” (Emphasis added).
At the conclusion of the hearing, the magistrate held Mother in contempt of court for her
lack of compliance and cooperation with Father. The magistrate further held that Father
would better foster the parent-child relationship than Mother. Based on these findings, the
magistrate changed the primary residential parent from Mother to Father, revised the
parenting schedule, and awarded Father sole decision making authority. Mother filed a
timely request for a de novo rehearing before the Hamilton County Juvenile Court.

       At a hearing on October 12, 2015, the juvenile court judge ordered the parties to
attend mediation. On December 14, 2015, the parties returned to court stating they had
attended mediation and presented a proposed parenting plan to the court. The juvenile
court judge found that the submitted parenting plan only addressed the issue of parenting
time and did not address or resolve the change in custody; therefore, the court conducted
an evidentiary hearing and heard testimony from the parents, two of Mother’s friends,
and the paternal grandfather. In its final order entered on December 23, 2015, the juvenile
court judge affirmed the magistrate’s prior findings and recommendations, finding that
Mother’s contempt of court constituted a material change in circumstances and upheld
the magistrate’s decision to change the permanent parenting plan by designating Father as
the primary residential parent, changing the parenting schedule, and awarding Father sole
decision making authority. This appeal followed.

                                          ISSUE

      Mother presents one issue for this court to consider:

      Whether the trial court erred in modifying the permanent parenting plan to
      change the primary residential parent from [Mother] to [Father] based upon
      the filing of a Contempt Petition, when there was no petition for
      modification pending nor a prayer for change of primary residential parent
      in the Contempt Petition.




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Mother does not appeal the finding that her failure to abide by the permanent parenting
plan was contemptuous.3

                                       STANDARD OF REVIEW

      The issue on appeal presents a question of law. Our review of a trial court’s
determinations on issues of law is de novo, without any presumption of correctness. Lind
v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011).

                                               ANALYSIS

       “[T]he inherent power of courts to punish contemptuous conduct has long been
regarded as essential to the protection and existence of the courts.” In re Brown, 470
S.W.3d at 442 (quoting Black v. Blount, 938 S.W.2d 394, 397–98 (Tenn. 1996)).
Furthermore, the courts’ power to punish for contempt

        is of immemorial antiquity, and is inherent in all courts as a necessary
        power belonging to them in order to enable them to accomplish the
        purposes for which they were designed; that is, the orderly trial and
        decision of causes, the enforcement of public order, the prevention of
        interferences with their proceedings, and the enforcement of the due respect
        belonging to them as institutions of the country.

Id. (citing Baker v. State, 417 S.W.3d 428, 435 (Tenn. 2013) (quoting Graham v.
Williamson, 164 S.W. 781, 782 (1914)). We also note that the juvenile court may punish
contempt of court by imposing a fine or imprisonment for disobeying a court order or for
obstructing or interfering with court proceedings or the enforcement of a court’s orders.
Tenn. Code Ann. § 37–1–158. See also State v. Ream, No. M2007–00264–COA–R3–JV,
2008 WL 4367457, at *2 n.2 (Tenn. Ct. App. Sept. 18, 2008) (noting that the juvenile
court has “the same authority as circuit or chancery court” with regard to contempt).
Additionally, a juvenile court magistrate “has the powers of a trial judge” in the conduct
of proceedings. Tenn. Code Ann. § 37–1–107(b); In re Brown, 470 S.W.3d at 440.

       While misconduct of a party often reflects fitness of the parent for custody,
“[c]ustodial arrangements should not be made with the goal of punishing a parent for
misconduct.” Barnhill v. Barnhill, 826 S.W.2d 443, 453–54 (Tenn. Ct. App. 1991).
Similarly, although the failure to adhere to a parenting plan can constitute a change of
        3
          “‘A determination of contempt is within the sound discretion of the trial court, subject to the
provisions of the law.’” In re Brown, 470 S.W.3d 433, 442 (Tenn. Ct. App. 2015) (citations omitted).
Because the trial court's power to punish contempt is discretionary, appellate courts review a trial court's
contempt citation using the abuse of discretion standard. Id. However, here neither party appeals the
finding of contempt. Thus, this deferential standard of review is not applicable to the issue on appeal.


                                                   -4-
circumstance, custody decisions “are not intended to reward or to punish parents.”
Massey-Holt v. Holt, 255 S.W.3d 603, 610-11 (Tenn. Ct. App. 2007) (quoting
Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997)). Furthermore,
“[i]t is well-settled that child custody and visitation should not be granted or withheld for
punitive purposes.” Id. at 611 (citation omitted).

        Tenn. Code Ann. § 36-6-101 authorizes courts to modify permanent parenting
plans. Specifically, the statute contemplates that “the issue” must be “before the court”
before the court is authorized to modify a prior decree pertaining to custody. Tenn. Code
Ann. § 36-6-101(B)(i). Moreover, a fundamental requirement of due process is “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.” State
v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993) (quoting Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950)). One of the primary purposes of pleadings
is to give notice of the issues to be tried so that an opposing party can adequately prepare
for trial. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn.
2011); see also McClellan v. Bd. of Regents of the State Univ., 921 S.W.2d 684, 688
(Tenn. 1996).

        In Keisling v. Keisling, 92 S.W.3d 374 (Tenn. 2002), our Tennessee Supreme
Court decided the following issue similar to the case at bar: “whether the trial court erred
in transferring child custody from one parent to the other when no petition requesting a
change of custody had been filed at the time of the ruling.” Keisling, 92 S.W.3d at 375.
The mother in that case filed a petition to modify the father’s visitation based on
allegations of sexual abuse. Id. at 376. At a hearing, the father denied the accusations and
orally requested to renew a prior petition to change custody based on the mother’s
baseless accusations. Id. The trial court then orally directed that custody of the parties’
children would temporarily be changed to the father, despite the fact that neither party
filed any pleading seeking such relief. Id. On appeal, the Tennessee Supreme Court held
that because of the substantial risk that a child could be removed from his or her parent’s
care erroneously, due process requires, at a minimum, a pleading be “filed informing
the parent that a change in custody is being contemplated by the court.” Id. at 378
(emphasis added).4 Additionally, the Court held that “[t]he magnitude of a parent’s
constitutional right to rear and have custody of his or her children necessitates that notice
satisfying the constitutional requirements of due process be given where a change in
custody is at issue.” Id. at 380.

        4
           The Keisling court considered three factors in determining the procedural protections demanded
by a particular situation: “(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.” Keisling, 92
S.W.3d at 377-78 (internal citations omitted).


                                                   -5-
      Here, the only issue “before the court” was Father’s petition for contempt, in
which Father prayed:

          1. That said defendant(s) be cited to show cause for failure to comply
             with the orders of this Court.
          2. That such further relief be granted to which petitioner may be
             entitled which may include incarceration for said contempt.

There was no prayer for a modification to the permanent parenting plan or a change of
the primary residential parent, and there were no allegations or proof of neglect, abuse or
unfitness of Mother. Nevertheless, Father argues on appeal that a change in custody was
contemplated in his request for “such further relief” that Father may have been entitled to
in his petition for contempt. We find this argument unpersuasive because basic due
process required Father to have given notice reasonably calculated under all the
circumstances, to apprise Mother of the pendency of the action, and afford her an
opportunity to present her objections. Id. at 377. The magistrate raising the issue of
custody sua sponte is not a pleading sufficient to afford Mother due process. As stated
above, “[o]ne of the purposes of pleadings is to give notice of the issues to be tried so that
the opposing party can adequately prepare for trial.” Id.

        Mother was never served with any pleading notifying her that Father may be
designated as the primary residential parent, that Father may be awarded sole decision
making authority, or that the parenting schedule and permanent parenting plan may be
modified. Consequently, we have determined that the magnitude of Mother’s
constitutional right to rear and have custody of her child necessitates that notice
satisfying the constitutional requirements of due process should have been given to her
where a change in custody was at issue. Id. at 380.

                                      IN CONCLUSION

       Therefore, to the extent the permanent parenting plan was modified, including
changing the primary residential parent, awarding Father sole decision making authority,
and modifying the parenting schedule, the judgment of the juvenile court is vacated, the
finding of contempt notwithstanding, and this matter is remanded for further proceedings
consistent with this opinion. Costs of appeal assessed against Father.


                                                   ________________________________
                                                   FRANK G. CLEMENT JR., P.J., M.S.




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