                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                          July 12, 2000 Session

   JEANNE MICHELE ROGERS HUDGENS v. KEITH ALLEN ROGERS

                     Direct Appeal from the Circuit Court for Sumner County
                            No. 19249C    Arthur E. McClellan, Judge



                       No. M2000-00239-COA-R3-CV - Filed January 4, 2001


The mother of four minor children appealed the trial court’s decision to change custody from Mother
to Father based on a material change in circumstances. Prior to the entry of that order, it had been
determined that an agreement, originally announced to the court which awarded custody of the
children to Mother, had been set aside due to the court’s finding that there had been no meeting of
the minds of the parties as several critical issues had been left unresolved. We have determined that
the court was correct in that decision. Therefore, the standard which the trial court should have
applied was one of comparative fitness and best interest of the children rather than a material change
of circumstances. This matter is reversed and remanded to the trial court.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.
and DON ASH , SP. J., joined.

Laura Y. Goodall, Gallatin, Tennessee and Robert Todd Jackson, Nashville, Tennessee, for the
appellant, Jeanne Michele Rogers Hudgens.

Mark T. Smith, Gallatin, Tennessee, for the appellee, Keith Allen Rogers.

                                       MEMORANDUM OPINION1

        Jeanne Michele Rogers Hudgens appeals from an order of the trial court granting Keith Allen
Rogers exclusive custody of the parties’ minor daughter, Haley Nicole Rogers and joint custody of
the parties’ minor children Ashley Michele Rogers, Brandon Keith Rogers and Lindsey Rogers. The


        1
         Rule 10(b) Memorandum Opinion. The 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 “MEMORA NDUM
OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.
order states that the trial court found there has been a significant material change in circumstances
since its order of September 16, 1999 and further recites as follows:

                  Relative to custody, the Husband shall have exclusive custody of Haley
         Nicole Rogers until she reaches maximum medical improvement. The parties shall
         have joint custody of Ashley Michelle Rogers, Brandon Keith Rogers, and Lindsey
         Rogers with these three children living with their Mother until such time as the
         Father establishes his permanent physical residence in Portland, Tennessee, at which
         time these three children shall then live with the Father with the Father being the
         primary custodian. The mother shall have visitation privileges with the minor
         children at that point in accordance with paragraphs 3, 4, and 5 of this Court’s order
         of December 28, 1999. At the point that Haley reaches maximum medical
         improvement, her custody arrangement will then revert to joint custody and she will
         be allowed to live with her siblings with the Father and she will be permitted
         visitation with her mother in accordance with paragraphs 3, 4, and 5 of the December
         28th order.

       Wife filed a complaint for divorce seeking, among other things, custody of the parties’ minor
children. Father filed an answer and counter complaint likewise seeking custody of the children.

        By order of May 28, 1999, Judge Thomas Goodall entered an order declaring the parties
divorced in accordance with T.C.A. § 36-4-129. The order further ordered both parties to submit
to mediation and, in the event mediation was not successful, the matter was set for hearing for July
28, 1999. Several orders were issued by Judge Goodall prior to the entry of this order.2 On
September 16, 1999 this matter was presented to Judge William M. Dender, sitting by designation
of the Chief Justice following the unfortunate death of Judge Tom Goodall. At that time the court
inquired of Husband’s counsel whether a petition for temporary custody was the last thing filed.
Counsel responded “That’s the last thing that was filed. As opposed to doing that Temporary
Custody, what we agreed is, just to put all issues on for the Court today.” Wife’s attorney in her
opening statement said “I concur that custody is the primary issue before this Court, and I agree that
the best interest of the children are, in fact, the appropriate consideration.” Following opening
statements, the court suggested that the parties recess to see if they could resolve their differences.
A recess was then taken from 9:48 a.m. until 2:44 p.m. When court resumed, Husband’s attorney
announced to the court that “I believe that we have reached an agreement on, I think, everything.
There are a few areas that we’re going to have to fill in the blanks on with some monies, and I think
Ms. Dunning and I can do that.” At that point Wife’s attorney, Ms. Dunning, announced a


         2
           A restraining order was entered on March 1, 1999. A show cause ord er was en tered on M arch 1, 19 99. A
supplemental restraining order was issued on March 19, 1999. An ex parte order of protection was entered March 19,
1999. A show cause ord er was en tered on A pril 6, 1999. On April 13, 1999 an order was entered mutually restraining
the parties and ordering them to cooperate with a licensed psychologist to perform a custodial evaluation of the family.
An agreed order for continuance was entered April 13, 1999. An agreed order was entered April 22, 1999 making
provisions for the various duties and responsibilities of the parties inasmuch as the court had previously ordered that
the parties continue to reside together in the marital residence and a show cause order was entered on May 12, 1999.

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declaration of agreement to the court that Mother would have custody and a visitation schedule was
set forth. Child support pursuant to the guidelines was to be $1,540 per month as well as additional
items including how private school tuition would be determined and insurance coverage. Father was
to maintain health insurance and each party pay half of any uncovered medical expenses. Each
parent would be able to take the child deduction for two children. Distribution of marital property
was agreed upon. Wife was to keep the house and agree to refinance it or to remove Husband’s
name from the debt. Wife was to pay the Visa credit card which was the only marital debt. Each
party was to pay debts incurred in their individual names. Husband was to maintain his life
insurance and the attorneys agreed that a trust agreement would be entered into within the next thirty
days. Wife’s attorney then announced that there were two more issues that she and Husband’s
attorney would “sit down and knock out together.” The first item, involving some household repairs
that Mr. Rogers had been under order to pay, would be split 50/50. The second issue concerned
unpaid child support. Husband said he had paid those and would submit proof of that but, if he had
not met the $1,540 burden, he would pay the difference. Each party was to pay their own attorney’s
fees and no alimony was to be awarded. Wife’s maiden name was to be restored. Each party was
sworn and when Mr. Rogers was asked if he had agreed to everything that had been said, he raised
the question of his insurance being in trust and, after discussion, the court indicated that the lawyers
should add working that out to the two things that they had previously said would need to be worked
out. Next was a discussion concerning insurance on one of the vehicles which needed to be resolved.
Ms. Rogers testified that she had heard the announcement that was made and those terms were
agreeable to her. However, she then raised a question about the most recent month’s child support.

        An order was entered December 28, 1999 by Judge Arthur McClellan, Judge Goodall’s
successor, which stated that the cause came on to be heard on the 16th day of September, 1999, an
obvious reference to the hearing before Judge Dender on that date wherein the parties announced that
they had reached an agreement as heretofore set out. The December 1999 order further recited that
the parties had stipulated to an agreement as set forth in detail in that order and which contains
essentially the same agreement to which the parties apparently agreed to and announced before Judge
Dender on September 16. The order awarded custody of the four minor children to Wife with
Husband to have visitation as set forth in a specific visitation schedule. Several issues were reserved
by the court for further orders, including Husband’s requirement to maintain life insurance and
Husband’s responsibility for the cost of Ashley attending Highland Academy.

        The matter came to be heard further before Judge Dender on September 29, 1999, upon
request of counsel for the parties to resolve disputes as to the terms of the agreement announced to
the court on September 16, 1999. Following that hearing, on October 12, 1999, Judge Dender
entered an order which provided that the court was of the opinion that the dispute should be resolved
in part if not in full by a transcript of the announcement and ordered that a transcript of the
announcement be obtained and filed with the court. The order further provided that the matter
should come on for review on October 13, 1999.

       On October 19, 1999, Judge Dender entered an order requiring each party to pay one-half of
the costs of the transcript ordered by the previous order and provided that the matter would be


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reviewed on October 26, 1999. The matter did come before Judge Dender again on October 26,
1999, following which Judge Dender entered an order on January 14, 2000, which states as follows:

               THIS CAUSE came on to be heard on the 26th day of October, 1999 before
       the Honorable William Dender, Circuit Court Judge Sitting by Special Designation,
       upon the request by the Wife, Jeanne Michele Rogers, to find that all disputes
       involved in this divorce were resolved by statements of counsel and the parties on
       September 16, 1999. Upon review of the filed transcript of the announcement to the
       Court which was made on September 16, 1999 and after hearing the argument of
       counsel, the Court found that there was no meeting of the minds in the announcement
       of September 16, 1999 and therefore the entire proposed announcement should fail.
       Therefore the Court will not enforce part of an agreement without having a complete
       agreement. The Court finds that if the parties cannot reach an agreement as to all
       issues and submit it in the form of an order, the entire divorce action, excluding the
       fact that the parties are divorced, should proceed to trial and the Court will at that
       time determine how to resolve all remaining issues. It is

               ORDERED, ADJUDGED AND DECREED that due to the fact that the
       parties could not agree on all issues to resolve all matters involved in their divorce,
       that there is no agreement and all remaining issues in the divorce action pending
       between the parties should be set for a final hearing so they can be resolved by the
       Court.

      The matter came before Judge McClellan on December 17, 1999, and an order was entered
on December 28, 1999, which provides in pertinent part as follows:

               This cause came on to be heard on the 17th day of December, 1999 upon the
       Motion for Request for Temporary Custody and Permission to Keep the Children
       when Mother not Available, and upon the Motion for Continuance, all filed by
       KEITH ALLEN ROGERS (hereinafter “Husband”), and upon the Response to the
       “Request” filed by JEANNE MICHELLE ROGERS (hereinafter “Wife”) and upon
       review of the record in this cause, the Court is of the opinion and finds as follows:
               1. That the parties made a stipulation in open court on September 16, 1999,
       a transcript of which is of record in this matter; and that the parties should be bound
       to the terms and conditions which were undisputed as announced at that time.
                2. That the trial of this cause is set for January 3, 2000, which will not be
       continued.
                3. At hearing on January 3, 2000, the Court will entertain the following
       three issues:
                a) custody based upon a change of circumstances since the announcement
       to the Court on September 16, 1999;
                b) life insurance trust by the Husband;



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                c)   requirement that Husband pay for private education of the oldest minor
       child.
               4. Pending final hearing, the visitation set forth in the stipulation announced
       to the Court on September 16, 1999 shall remain in full force and effect. In the event
       that the Mother has to leave the children in the care of a person other than immediate
       family (her present husband excluded), the Husband shall be permitted to have the
       children during that time. The Mother shall notify the Husband at his pager number
       of 783-9031 and if he does not respond to this page, he shall be deemed to have
       waived these rights.

       As indicated in the above order, the court determined that custody would be based upon
whether there had been a change of circumstances since the announcement to the court on September
16, 1999.

        By order of January 7, 2000, following hearings conducted on January 3 and 6, 2000 before
Judge McClellan, the court found that there had been a significant material change in circumstances
since the September 16, 1999, hearing. With the respect to custody, the order provided as follows:

                Relative to custody, the Husband shall have exclusive custody of Haley
       Nicole Rogers until she reaches maximum medical improvement. The parties shall
       have joint custody of Ashley Michelle Rogers, Brandon Keith Rogers, and Lindsey
       Rogers with these three children living with their Mother until such time as the
       Father establishes is permanent physical residence in Portland, Tennessee, at which
       time these three children shall then live with the Father with the Father being the
       primary custodian. The mother shall have visitation privileges with the minor
       children at that point in accordance with paragraphs 3, 4, and 5 of this Court’s order
       of December 28, 1999. At the point that Haley reaches maximum medical
       improvement, her custody arrangement will then revert to joint custody and she will
       be allowed to live with her siblings with the Father and she will be permitted
       visitation with her mother in accordance with paragraphs 3, 4, and 5 of the December
       28th order.

The order also revised the payment of child support among other things.

       Having reviewed the transcript of the September 16, 1999, hearing before Judge Dender,
which transcript was reviewed by Judge Dender prior to reaching his decision, we are unable to
determine that Judge Dender reached the wrong decision in determining that there had not been a
meeting of the minds of the parties and that there was no agreement between the parties.

        We are unable to determine from the record why these matters were pending before two
different judges. However, we are of the opinion that, when Judge McClellan entered his order of
December 28, 1999, Judge Dender had conducted a hearing prior to that date on October 26, 1999
to consider Wife’s request that the court find that all disputes had been resolved at the September


                                                -5-
16, 1999 hearing. Although Judge Dender did not enter an order until January 18, 2000, at the time
of the entry of Judge McClellan’s order of December 28, 1999, the matter was still pending before
Judge Dender to determine the validity of the September 1999 agreement. As we have noted, Judge
Dender did determine that that agreement was not valid. We are of the further opinion that the order
of December 28, 1999 should not have been entered while the issue of the validity of the agreement
was still pending before Judge Dender. The outcome of Judge Dender’s decision would determine
the standard of review when the matter ultimately came before Judge McClellan. If the agreement
were valid, the standard would be a change of circumstances, which was the standard that Judge
McClellan applied in ultimately granting custody to the father. If the agreement was not valid, the
standard would be that of comparative fitness and best interests of the children. See Bah v. Bah, 668
S.W.2d 663 (Tenn. Ct. App. 1983).

        Having determined that Judge Dender was correct in his decision that the agreement
announced in open court on September 16, 1999, was not valid because there was not a meeting of
the minds between the parties due to the fact that major issues were unresolved, the hearing before
Judge McClellan should have been conducted applying a standard of comparative fitness and best
interests of the children. Therefore, the matter is remanded to the trial court to determine custody
based on the standard of comparative fitness and best interests of the children and to determine any
other issues raised by the pleading which the parties are unable to resolve prior to the hearing, with
the exception of the order of Judge Goodall of May 28, 1999 declaring the parties to be divorced in
accordance with T.C.A. § 36-4-219.

       The costs of this appeal are taxed one-half to Jeanne Michelle Rogers Hudgens and one-half
to Keith Allen Rogers, and their sureties, for which execution may issue if necessary.



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




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