                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                August 26, 2010 Session

     JOHN STEVEN DAVIDSON, JR. v. MARY MOLTENI DAVIDSON

                  Appeal from the Circuit Court for Davidson County
                       No. 07D1418     Carol Soloman, Judge


              No. M2009-01990-COA-R3-CV - Filed November 15, 2010


Wife appeals the trial court’s designation of Husband as primary residential parent of the
parties’ two children and reduction of Wife’s parenting time with one of the children. We
vacate the trial court orders at issue and remand the case for further proceedings.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P.S., M.J. and A NDY D. B ENNETT, J., joined.

Timothy T. Ishii, Nashville, Tennessee, for the appellant, Mary Molteni Davidson.

James G. King, Nashville, Tennessee, for the appellee, John Steven Davidson.

                                         OPINION

I. Background and Procedural History

        John Steven Davidson, Jr. (“Mr. Davidson”) and Mary Molteni Davidson (“Ms.
Davidson”) were married on December 31, 1997 following a six year dating relationship.
At the time of their marriage, Ms. Davidson had one child, a daughter. On April 4, 2002, Mr.
and Mrs. Davidson had a son. In October 2005, Mr. and Mrs. Davidson separated.

       On May 15, 2007, Mr. Davidson filed a complaint for divorce alleging indignities to
his person, inappropriate marital conduct, and irreconcilable differences. Mr. Davidson also
requested joint custody of both children. On August 17, 2007, Mr. Davidson filed a motion
to compel Ms. Davidson to maintain him on her health insurance, a motion for default
judgment, and a motion for pendente lite visitation. On August 21, 2007, Ms. Davidson filed
an answer and counterclaim for divorce in which she alleged inappropriate marital conduct
and adultery as grounds for divorce; she further requested to be designated as the children’s
primary residential parent.

        On September 10, 2007, the trial court entered an order, inter alia, granting pendente
lite parenting time for Mr. Davidson. Specifically, with respect to Mr. Davidson’s parenting
time, the order stated:

        3. The proof shows that the parties had been separated and living apart since
        October of 2005. Since that time, the Husband has had parenting time with the
        parties’ two children for an average of three days and nights per week. The
        Husband exercised this amount of parenting time largely at the request of the
        Wife in order to accommodate her work schedule. This amount of parenting
        time shall continue as it is presently in the best interest of the children with the
        Husband now having parenting time with the parties’ children every Sunday
        at 6:00 p.m. to the time the children resume school on Wednesday morning.

        On February 14, 2008, Mr. Davidson filed a petition for emergency change of
pendente lite custody, for a finding that Ms. Davidson was in criminal contempt, and for a
restraining order. The petition alleged that Ms. Davidson had willfully violated the
September 10, 2007 order by alienating the children’s affection for him, denying him
visitation with the children, and by excessively calling him. The trial court entered an order
June 4, 2008, nunc pro tunc to March 26, 2008, finding Ms. Davidson guilty of criminal
contempt and sentencing her to eighty days imprisonment for her willful and intentional
violation of the court’s September 10, 2007 order; however, Ms. Davidson served only eight
days of her sentence.1

       A hearing on the complaints for divorce was held on April 29, 2008 and on June 19
the court entered a Final Judgment of Divorce, granting the divorce on the parties’ mutual
misconduct, dividing the marital assets, and adopting a parenting plan. With respect to the
children, the order stated:

        2. With regard to the parties’ two minor children, the Court makes the
        findings of fact pursuant to Tenn. Code Ann. § 36-6-106[ 2 ]:

        1
          The court’s order on Mr. Davidson’s petition for criminal contempt was not included in the
Technical Record, but was included as an exhibit to Mr. Davidson’s appellate brief.
        2
        While there is little substantive difference between the factors applicable to parenting plans, Tenn.
Code Ann. § 36-6-404(b), and those applicable to custody determinations, Tenn. Code Ann. § 36-6-106, the
                                                                                                (continued...)

                                                    -2-
        a.      It is in the best interest of the parties’ two minor children for the
        Husband to be designated the Primary Residential Parent. The proof showed
        that the Wife was adamant in trying to get the children to dislike their Husband
        [sic]. Wife insisted on calling the Husband an adulterer in front of the children
        and wrote it on the children’s Christmas presents to Husband.

        b.     Husband’s love, affection, and emotional ties to the children were
        stronger and much healthier than the Wife’s ties.

        c.          Both parties have provided well for the children.

        d.     Pursuant to Tenn. Code Ann. § 36-6-106 § 5, this Court has read and
        considered the psychological examination conducted by Ray Potts, Ed.D. The
        Court is most concerned about the mental illness of Wife and how it affects the
        children. The Court heard an audio recording taken during one of the
        parenting time exchanges where the Wife was torturing the minor son by
        screaming epithets at the Husband, all the while the son was crying “Stop
        Mom, Stop. You do this every time”.

        e.     Pursuant to Tenn. Code Ann. § 36-6-106 § 8, the Court finds strong
        evidence of emotional abuse by the Wife toward the children. The Wife is not
        able to control her anger when it concerns the Husband.

        f.      The Court found § 10 of Tenn Code Ann. § 36-6-106 most important
        when considering custody. The Court has had to previously incarcerate the
        Wife for eight (8) days and suspend the remainder of an eighty (80) day
        sentence for the Wife’s interference with phone calls and visits with the
        Husband and for outrageous statements screamed at the Husband in front of
        the children: all to their detriment. The Wife does not have the ability to
        facilitate and encourage a close and continuing parent-child relationship
        between the Husband and the children. The Husband, on the other hand, has
        worked very hard to foster a good relationship between the Wife and the
        children.


        2
            (...continued)
designation of a primary residential parent and the determination of residential parenting time are controlled
by the fifteen factors and a sixteenth discretionary catch-all provision outlined in Tenn. Code Ann. § 36-6-
404(b), not by the ten factors in Tenn. Code Ann. § 36-6-106. See Bryant v. Bryant, No. M2007-02386-
COA-R3-CV, 2008 WL 4254364, at *5–6 (Tenn. Ct. App. Sept. 16, 2008).

                                                     -3-
g.    This Court finds that it is not a close call. It is in the best interest of the
children to designate the Husband as the Primary Residential Parent. The Wife
will have parenting time three (3) days a week only if conflict is not present
between the Wife and the Husband and only if the Wife can control her
behavior with the Husband. The Wife shall continue to receive mental health
treatment for these issues. The Husband shall discuss with the Wife all issues
concerning the children and shall take into consideration her wishes, however,
he shall have the sole decision-making authority in all areas.

h.     Possession of the children at this time shall be four (4) days with the
Husband and three (3) days with the Wife. 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 anymore heartbreak on these children, the Court will consider
more extreme measures. The Court will not tolerate any misconduct at all
from the Wife. This Court feels that it has not protected the children from the
trauma the Wife has imposed upon them. The Court will not allow that to
happen again. The Court strongly considered restricting the Wife’s time with
her children. The Court expects a concerted effort on the Wife’s part to take
care of her personality disorders that cause her to act the way she does.

i.    The Wife shall have a child support obligation to the Husband. It is
addressed in the Parenting Plan attached hereto.

j.     The Husband shall insure that the parties’ oldest child receives mental
health counseling.

k.     The Court wants the parties to make the Wife’s treating psychiatrist/
psychologist aware that he/she shall be free to contact the Court if he/she feels
that the Wife’s behavior is putting the children at risk. The Court wants




                                         -4-
        him/her to notify the Court of such circumstance immediately.                           Such
        notification shall be filed with the Court and placed under seal.3

       Paragraph 21 of the judgment stated, “The Parenting Plan attached hereto is approved
for entry and incorporated into this Final Decree of Divorce.” The attachment was
designated “Permanent Parenting Plan Order” and, among other things, designated Mr.
Davidson as the children’s primary residential parent; set forth a residential parenting
schedule which allotted Mr. Davidson 209 days with the children per year and Ms. Davidson
156 days with each of the children per year; and required Ms. Davidson to pay $348.00 in
child support each month. Ms. Davidson initiated an appeal from the Final Judgment of
Divorce. The appeal was dismissed without prejudice on December 30, 2008.4

       Following the entry of the Final Judgment, the trial court entered an order on February
5, 2009, which it denominated “Order Pending Final Hearing,” reducing Ms. Davidson’s
parenting time to two days per week. The order also provided for Ms. Davidson’s holiday
parenting time, required Ms. Davidson to deliver some items to her psychiatrist, and granted
Mr. Davidson a judgment against Ms. Davidson for past due child support in the amount of
$214.00. On February 25, 2009, the court entered an agreed order allowing Ms. Davidson
to claim her daughter as a dependent on her 2008 income taxes.

       On April 17, 2009, Mr. Davidson filed a document styled “Motion for Review.” On
April 23, 2009, Ms. Davidson filed a “Motion to Increase Parenting Time and to Order
Specific Summer Vacation for Mother with Children and to Hear from the Mother’s



        3
          Although not raised as an issue in this appeal, we caution the trial court in including a requirement
such as this, which may very well invade the physician/patient privilege, in a parenting plan. In addition to
encouraging communications with the court from third parties regarding pending matters, the court has not
included a requirement that the parties be notified of any such communication; neither has the court given
any indication of what the parties’ rights are relative to the communication.
        4
            The Order dismissing the appeal stated:

        Upon the unopposed motion of the appellant and pursuant to Tenn. R. App. P. 15(a), this
        appeal is hereby dismissed without prejudice to the filing of a new appeal once a final
        judgment is entered. The appellant and her surety are taxed with the costs for which
        execution may issue.

        Inasmuch as the motion to dismiss the appeal was unopposed, the order dismissing the appeal was
entered based on the representation that a final judgment had not been entered, and this Court was not asked
to determine whether the June 2008 judgment was appealable. As more fully explained infra, we have
determined that the June 2008 order was final.

                                                      -5-
Therapist.” A hearing on the motions was held on June 9, 2009 at which Ms. Davidson’s
psychologist and her sixteen year old daughter testified.

       The trial court entered an order on July 29, 2009 stating in pertinent part, “the
Permanent Parenting Plan attached herein shall be incorporated into the June 19, 2008 Final
Decree of Divorce and be made a final order. All parenting time is addressed in said
Permanent Parenting Plan.” The “Permanent Parenting Plan” to which the court referred
designated Mr. Davidson as the primary residential parent, gave him 261 days per year with
the son and 209 days per year with the daughter; Ms. Davidson was given 104 days and 156
days with her son and daughter, respectively.

       On August 21, 2009, Mr. Davidson filed a “Motion to Alter or Amend, set Aside Ms.
Davidson’s Order and Enter Mr. Davidson’s Order/or Relief Under Rule 60 of the Tennessee
Rules of Civil Procedure” requesting the court to make certain changes and corrections to the
court’s July 29, 2009 order and permanent parenting plan. On September 25, 2009, prior to
the court’s ruling on Mr. Davidson’s motion, Ms. Davidson filed her notice of appeal. On
November 16, 2009, the trial court entered an order on the motion in which the court adopted
another “Permanent Parenting Plan Order” which made some modifications to the “Holiday
Schedule And Other School Free Days” section of the plan ordered in July 2009; the
November 16 order stated that “the Permanent Plan attached herein shall be incorporated into
the June 18, 2008 Final Decree of Divorce and be made a final order.”

       Ms. Davidson appeals the action of the court in naming Mr. Davidson as the primary
residential parent of the minor children and in reducing her parenting time with her son.
Both rulings were a part of the July 19, 2009 order and were not disturbed by the
modifications in the November 2009 order. In addition, she contends the trial court’s bias
toward her resulted in a decision unsupported by the evidence.5 Pursuant to Tennessee Rule
of Appellate Procedure 4(e), Ms. Davidson’s Notice of Appeal “shall be deemed premature
and shall be treated as filed after the entry of the order disposing of the motion and on the day
thereof.” Tenn. R. App. P. 4(e). Consequently, the orders subject to review in this appeal
are the orders entered July 29 and November 16, 2009.




       5
          Ms. Davidson also appealed the division of marital property. At oral argument she waived the
issue and asked this Court to focus solely on the parenting plan matters.

                                                 -6-
II. Analysis

       A. Parenting Plan Orders

       This appeal is from two orders in which the court stated it was incorporating a
permanent parenting plan into the June 19, 2008 Final Judgment of Divorce. This presents
a unique procedural posture which requires us to examine the authority under which the trial
court made adjustments to the Permanent Parenting Plan entered with its June 19, 2008 Final
Judgment of Divorce. Although this issue is not raised by the parties, Tenn. R. App. P. 36(b)
allows this Court to “consider an error that has affected the substantial rights of a party at any
time, even though the error was not raised in the motion for a new trial or assigned as error
on appeal.”

        The Tennessee legislature has directed courts to adopt permanent parenting plans in
all actions for absolute divorce where minor children are involved. See Tenn. Code Ann. §
36-6-404(a) (2005) (“Any 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 . . . .”). The parenting plan statutes direct trial courts
to: “(1) adopt permanent parenting plans in all divorces involving minor children; (2) not
award “custody” or “visitation” in cases where a parenting plan is required; and (3) apply a
specific set of factors, included in the parenting plan legislation when approving or designing
a permanent parenting plan.” Dillard v. Dillard, No. M2007-00215-COA-R3-CV, 2008 WL
2229523, at *4 (Tenn. Ct. App. May 29, 2008). Tenn. Code Ann. § 36-6-402(3) defines a
permanent parenting plan as “a written plan for the parenting and best interests of the child,
including the allocation of parenting responsibilities and the establishment of a Residential
Schedule, as well as an award of child support consistent with title 35, chapter 5[.]” As part
of the permanent parenting plan, the court must delineate a residential schedule, which
designates the primary residential parent and sets forth the number of days the children will
reside with each parent; in crafting the residential parenting schedule, the court is to consider
the statutory factors enumerated in Tenn. Code Ann. § 36-6-404 (b).

      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:

       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

                                               -7-
        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 anymore heartbreak
        on these children, the Court will consider more extreme measures. The Court
        will not tolerate any misconduct at all from the Wife. This Court feels that it
        has not protected the children from the trauma the Wife has imposed upon
        them. The Court will not allow that to happen again. The Court strongly
        considered restricting the Wife’s time with her children. The Court expects a
        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.6

       The trial court lacked authority to maintain indefinite control over the parenting plan,7
and the court’s language in paragraph (2)(h), calling the plan temporary,8 does not undermine
the finality of the Permanent Parenting Plan Order which was incorporated into the Final


        6
          Parental responsibility determinations “should be made promptly” inasmuch as “delaying these
decisions only adds to the divorce’s traumatic effect on the children and the parents.” King v. King, 1992
WL 301303, at *2 (Tenn. Ct. App. Oct. 23, 1992) (citations omitted).
        7
          In addition to the lack of authority of the court to make the parenting time plan temporary, the
language in paragraph (h) of the judgment, quoted above, set no standards by which the parties, the children,
or counsel could determine whether, when, under what conditions, and the extent to which the “temporary”
provisions would become permanent or be modified; neither did it set forth a procedure to bring a request
for such determinations or modification of the order to the court.
        8
          We recognize that trial courts have discretion to grant temporary parenting plans in circumstances
“where the trial court does not have sufficient information to make a permanent custody decision or where
the health, safety or welfare of the child or children are imperiled.” In re E.J.M., No. W2003-0603-COA-R3-
JV, 2005 WL 562754, at *3–4 (Tenn. Ct. App. March 10, 2005). Here, there is no question that the trial
court had sufficient information to make a final decision on the parenting arrangements in June 2008.

                                                    -8-
Decree of Divorce.9 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). We
will dispose of the issues accordingly.

        Once the trial court enters a permanent parenting plan, the residential placement
schedule is res judicata as to the facts in existence or reasonably foreseeable when the
decision was made. Keisling v. Keisling, 196 S.W.3d 703, 719 (Tenn. Ct. App. 2005);
Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). It cannot be modified
unless there has been a material change in circumstances that makes a change in the child’s
best interest. Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Blair v. Badenhope,
77 S.W.3d 137, 148 (Tenn. 2002); see also Hansen v. Hansen, No. M2008-02378-COA-R3-
CV, 2009 WL 3230984, at *3 (Tenn. Ct. App. Oct. 7, 2009) (“Alteration of a parenting plan
cannot be accomplished on a whim.”). When one party to the divorce endeavors to modify
the permanent parenting plan, the “threshold issue” is whether a material change in
circumstances affecting the child’s best interest has occurred since the adoption of the
existing parenting plan. See Tenn. Code Ann. § 36-6-101(a)(2)(B); see also Kendrick, 90
S.W.3d at 570. Without a showing of a material change in circumstances, the trial court has
no authority to modify a permanent parenting plan.

       In neither the July nor the November orders did the trial court make findings of fact
of a change in circumstances since June 19, 2008; moreover, the court did not explain the
basis of its rulings. We cannot determine the basis upon which Ms. Davidson’s parenting
time with her minor son was decreased from the 156 days granted in the 2008 Permanent
Parenting Plan Order to the 104 days granted in the 2009 Permanent Parenting Plan or
whether such reduction was in the best interest of the child. As a consequence, this Court
cannot properly perform its function to review the trial court’s application of the law to the
facts and the exercise of its discretion in determining matters under the parenting plan
statutes. See Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting Suttles v. Suttles,
748 S.W.2d 427, 429 (Tenn. 1988)).

        As noted previously, this case presents a unique procedural posture. The court and
parties to this case operated under the belief that the June 19, 2008 Permanent Parenting Plan
Order was temporary. In the interim, the court made several rulings which modified the
parenting schedule and to which the parties have adhered. Under the law applicable to this


        9
           While the facts are not directly analogous, this court has previously opined that a trial court’s
intention to review a custody arrangement at a later date did not undermine the finality of the decree. See
Hoalcraft v. Smithson, 19 S.W.3d at 827–28 (finding that placing a child custody order on the “review
docket” does not prevent the order from being final).

                                                    -9-
case, the parties are entitled to a hearing to determine whether there has been a change in
circumstances necessitating or authorizing modifications of the plan.10

       Because the court had no authority to enter the July and November 2009 orders
modifying the permanent parenting plan, we must vacate those orders. We remand the case
to allow either or both of the parties to move for modification of the June 19, 2008 parenting
plan order in accordance with Tenn. Code Ann. §§ 36-6-405 and 36-6-101 in light of
circumstances occurring since that time. One of the issues for consideration by the parties
and the court should be the designation of the primary residential parent for each of the
children.

        B. The Manner and Conduct of the Hearing

        Ms. Davidson complains that the trial court manifested a “prejudicial attitude” toward
her, as evidenced by certain comments and procedural rulings. Ms. Davidson, however, did
not move the court to recuse itself; consequently, there is no order or record developed on
such a motion for us to review.

       Comments of the nature complained of can be perceived to affect the outcome of the
case. Because we have vacated the orders from which she appeals, and in light of the fact
that no motion to recuse was made, it is not necessary for us to determine whether the
comments affected the outcome. On remand, we expect the court will conduct further
proceedings and resolve the remaining issues in adherence to the authority entrusted the court
under the law. The parties are entitled to a hearing and the development of a factual record
in accordance with the rules of evidence and procedure, the substantive law applicable to
their case, and without the fear and intimidation that inappropriate comments by the court
inevitably produce. Each proceeding should be conducted in a manner that instills
confidence that the case has been determined in a fair and impartial manner.

II. Conclusion

       For the aforementioned reasons, we VACATE the court’s July 29, 2009 Order and
Parenting Plan as well as the November 16, 2009 Order and Parenting Plan and REMAND
the case to allow the parties to file the appropriate motion for modification of the June 19,


        10
          For example, at the June 9, 2009 hearing, Ms. Davidson’s psychologist, Dr. Mary Black, testified
that Ms. Davidson was “mentally stable” and that she is “an exceptionally good parent.” Ms. Davidson’s
daughter also testified that she would prefer to live with her mother. These are matters which may support
the finding of a material change of circumstances and lead to modifications of a residential parenting
schedule. See Tenn. Code Ann. § 36-6-101(a)(2)(B) and (C).

                                                  -10-
2008 Order and Permanent Parenting Plan Order. Pending the filing of such motion and
hearing thereon, the parties are directed to adhere to the residential parenting schedule
contained in the November 2009 order.




                                                 _________________________________
                                                 RICHARD H. DINKINS, JUDGE




                                          -11-
