               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                August 12, 2015 Session


           DANA JO STRICKLIN v. JERONE TRENT STRICKLIN

             Appeal from the General Sessions Court for Hardin County
                     No. 2009CV7182     Daniel L. Smith, Judge

                         ________________________________

             No. W2015-00538-COA-R3-CV – Filed September 21, 2015
                     _________________________________

This appeal stems from a post-divorce modification proceeding that was commenced by
Mother in order to modify the parties‟ permanent parenting schedule. Following a recess
at trial, the parties announced that they had agreed to the terms of a new parenting plan.
The agreed-upon terms were announced by the parties‟ counsel in the presence of the
parties in open court. Following the entry of the order approving the modified parenting
plan, Father stated that he did not consent to the parenting plan and moved to set the trial
court‟s order aside. The trial court denied his motion. Because the trial court‟s order does
not contain a finding that the modified parenting plan is in the child‟s best interests, we
vacate and remand for further proceedings consistent with this Opinion.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

James Y. Ross, Waynesboro, Tennessee, for the appellant, Jerone Trent Stricklin.

Jennifer King and Jay Dustin King, Jackson, Tennessee, for the appellee, Dana Jo
Stricklin.
                                         OPINION

                          Background and Procedural History

       Dana Jo Stricklin (“Mother”) and Jerone Trent Stricklin (“Father”) were married
on July 12, 1997, in Hardin County, Tennessee. In September of 2009, after more than
12 years of marriage, Mother filed a “Complaint for Divorce” in the General Sessions
Court of Hardin County. The parties were ultimately divorced pursuant to a final decree
of divorce entered on December 14, 2009. The final decree entered by the trial court
incorporated a marital dissolution agreement and also approved a permanent parenting
plan concerning the minor child born of the marriage. The permanent parenting plan
allocated Mother 215 days of parenting time per year and provided that Father would
exercise parenting time with the child “on all of his days off.”

       On November 18, 2013, Mother filed a “Motion to Modify Permanent Parenting
Plan and Child Support.” Therein, Mother alleged that a modification of the current
parenting plan was justified and also requested that the court grant an increase in Father‟s
child support obligation. A hearing on these issues was scheduled for April 21, 2014.

       At the beginning of the April 21 hearing, the trial court heard proof from Mother,
who testified in support of her request to modify the parenting schedule. After a recess,
however, counsel for Mother, in the presence of the parties, announced to the court that
the parties had agreed to enter a new parenting plan that would amend the previous order
of the court. Mother‟s counsel explained that Mother would remain the primary
residential parent under the modified plan, but noted that Father‟s parenting time would
be specifically designated. Mother‟s counsel then proceeded to outline the various
provisions that the parties had agreed on with regards to parenting time. Following this
lengthy recitation and overview, counsel for Father stated that he was in agreement with
the announcement.

       Subsequent to the parties‟ announcement, the trial court heard arguments on three
separate issues that remained unresolved from the announced agreement. These issues,
which are not the subject of litigation in this appeal, included, inter alia, inquiry into
whether Father would be liable for retroactive child support. After making oral rulings
on these issues, the trial judge concluded the hearing and remarked orally that he was
glad the parties had been able to work out their dispute “for the best interest of the child.”

       On June 3, 2014, the trial court entered an “Order for Modification of Permanent
Parenting Plan.” In addition to memorializing the oral rulings made at the April 21
hearing, the trial court‟s June 3 order concluded that an increase in Father‟s child support
obligation was not justified. As is relevant to this appeal, the June 3 order also adopted a

                                              2
parenting plan containing the provisions that were discussed in detail as part of the April
21 announcement. The parenting plan was not signed by either party.1

       On June 25, 2014, Father filed a motion seeking to alter or amend or otherwise
vacate the June 3 order. The motion, filed by Father‟s newly retained counsel, purported
to describe events that occurred in connection with the April 21 hearing. According to
the motion, Father‟s previous counsel had informed him that if he did not agree to modify
the parties‟ parenting plan, the trial court would do it at the conclusion of the April 21
hearing. Father claimed that both prior to and subsequent to the announced agreement,
he informed his attorney that “he was not happy with, and/or did not agree with, the terms
and provision[s] of the parenting plan as modified.” He further observed that the June 3
order failed to find that a change of circumstances had occurred or that the adopted
parenting plan was in the best interest of the minor child. Following a hearing on
Father‟s motion, the trial court denied it by order entered on November 17, 2014. This
appeal ensued.

                                            Issues Presented

        In his brief, Father raises two issues for our review, which we have condensed and
re-stated as follows:

        1. Whether the decision of the trial court should be reversed because the
           modification proceeding was initiated by a motion instead of a petition.

        2. Whether the trial court erred by not vacating the entered modified parenting
           plan.

                                          Standard of Review


        On appeal, we review the trial court‟s findings of fact “de novo upon the record of
the trial court, accompanied by a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d). We review the
trial court‟s resolution on a question of law de novo, but no presumption of correctness
attaches to the trial court‟s legal conclusions. Bowden v. Ward, 27 S.W.3d 913, 916
(Tenn. 2000).

       The purpose of a motion to alter or amend a judgment “is to provide the trial court
with an opportunity to correct errors before the judgment becomes final.” In re M.L.D.,
182 S.W.3d 890, 895 (Tenn. Ct. App. 2005) (citation omitted). “The motion should be
granted when the controlling law changes before the judgment becomes final; when

1
 To this end, we agree with Father that the trial court erred in stating that the parenting plan was executed
by both parties.

                                                      3
previously unavailable evidence becomes available; or to correct a clear error of law or to
prevent injustice.” Id. (citation omitted). On appeal, we review a trial court‟s decision
regarding a motion to alter or amend a judgment under an abuse of discretion standard.
Id. (citation omitted).

                                       Discussion

        We first address Father‟s argument that the trial court‟s decision should be
reversed due to the fact that the modification proceeding was initiated by a “motion”
rather than a petition. At the outset, we note that we do not disagree with Father that the
applicable statute appears to contemplate the filing of a petition for modification as
opposed to a motion. In part, Tennessee Code Annotated section 36-6-405(a) states as
follows: “In a proceeding for a modification of a permanent parenting plan, a proposed
parenting plan shall be filed and served with the petition for modification and with the
response to the petition for modification.” Tenn. Code Ann. § 36-6-405(a) (2014)
(emphasis added). As the Tennessee Supreme Court previously observed, “[this statute]
appears to require the filing of a petition for modification rather than a motion as the
initial pleading.” Armbrister v. Armbrister, 414 S.W.3d 685, 688 n.4 (Tenn. 2013).

        In his brief, Father suggests that because Mother simply filed a “motion” to
modify the parenting plan, this prevented the trial court from properly assuming
jurisdiction over the modification proceeding. In advancing the importance of filing a
petition as opposed to a motion, Father argues that the “petition” required under the
statute should be treated as synonymous with a “complaint” for the purposes of Rule 3 of
the Tennessee Rules of Civil Procedure. Immediately after making this argument in his
brief, Father outlines a number of procedural rules that are implicated upon the filing a
complaint pursuant to Rule 3. For example, Father notes that under Rule 4 of the
Tennessee Rules of Civil Procedure, the filing of the complaint triggers the clerk‟s
responsibility to issue a summons for service of process.

       The simple fact that Mother styled her pleading as a motion instead of a petition is
not of ultimate consequence. “When appropriate, the courts should give effect to the
substance of a pleading rather than its form.” Brundage v. Cumberland Cnty., 357
S.W.3d 361, 371 (Tenn. 2011) (citation omitted). Designating her pleading as a motion
instead of a petition did not detract from the substance of the aims Mother sought to
achieve through her post-divorce filing. We fail to see how the erroneous styling of
Mother‟s pleading, by itself, prevented the trial court from assuming jurisdiction over the
modification proceeding.

      Further, although we agree that the petition referred to in Tennessee Code
Annotated section 36-6-405(a) should be treated as a “complaint” for the purposes of the



                                            4
Tennessee Rules of Civil Procedure,2 we observe that Father‟s brief does not actually
state that he was denied any of the procedural rights that follow the filing of a complaint
under Rule 3. Indeed, although Father notes that the service of a summons is required
under Rule 4, nowhere does Father specifically assert that he was denied service of
process with regard to Mother‟s motion to modify. More importantly, we observe that
Father never raised any issues regarding his procedural rights in the trial court. To the
extent that he even attempts to do so implicitly on appeal, we note that these issues are
waived. See Johnston v. Houston, 170 S.W.3d 573, 578 (Tenn. Ct. App. 2004) (citation
omitted) (“Tennessee law is clear that an issue not raised in the trial court may not be
raised for the first time on appeal.”). We accordingly find no error with respect to
Father‟s first raised concern.

        Father‟s second issue on appeal specifically challenges the validity of the trial
court‟s June 3, 2014 order. In his brief, he argues that the June 3 order should have been
set aside following the filing of his June 25, 2014 motion to alter or amend or vacate. 3 In
support of this argument, Father cites a host of statutes and procedural rules, some of
which are clearly not relevant to the facts of this case.4 In general terms, Father
challenges the trial court‟s modification order on two fronts. First, he alleges that his
consent to the parenting plan was never demonstrated. Second, he alleges that the trial
court‟s order lacks appropriate findings of fact and conclusions of law.

       With regard to the consent issue, we disagree with Father that he did not consent
to the terms of the agreement that were announced in open court. At the April 21
hearing, at which both Mother and Father were present, Mother‟s counsel announced in

2
  Under Rule 3 of the Tennessee Rules of Civil Procedure, “[a]ll civil actions are commenced by filing a
complaint.” Tenn. R. Civ. P. 3. As was explained in a 2013 Advisory Commission Comment to Rule 3,
“[d]epending on the nature of a statutorily authorized „petition,‟ the petition might be considered a
„complaint‟ for purposes of [the rules of procedure], or it might be considered a motion relating to a
pending civil action.” In light of the nature of modification proceedings under Tennessee Code
Annotated section 36-6-405, we conclude that the commencement of proceedings under that section
should be treated as the filing of an independent action.
3
  When Father filed his June 25, 2014 motion to alter or amend or vacate, he requested relief pursuant to
Tennessee Rules of Civil Procedure 59 and 60. Because his motion was filed within thirty days from the
entry of the June 3 order, we regard his motion as a request for relief under Rule 59. See Campbell v.
Archer, 555 S.W.2d 110, 112 (Tenn. 1977) (“The function of [Rule 60] is to give relief from final
judgments; Rule 59 . . . is the appropriate remedy for asserting alleged errors affecting a judgment which
has not yet become final.”).
4
  For example, at one point, Father‟s brief cites to Tennessee Code Annotated section 36-6-406(a). In
part, that statute provides that a parenting plan shall not utilize dispute resolution if the court determines
that a parent has engaged in (1) willful abandonment that continues for an extended period of time or (2)
physical or sexual abuse or a pattern of emotional abuse of a parent, child, or of another person living
with the child. Tenn. Code Ann. § 36-6-406(a) (2014). Although Father cites to this statute, he does not
explain why it is relevant, nor are there any facts in the record which compel us to find that it is.

                                                      5
open court and in the presence of the parties that the parties had reached an agreement as
to the parenting issues between them. Importantly, we observe that this announcement
was not made in general terms. Rather, subsequent to her initial announcement that an
agreement had been reached, Mother‟s counsel went on to outline in detail the various
provisions upon which the parties had agreed. These provisions were announced on the
record before a court reporter, and at the end of Mother‟s counsel‟s recitation, Father‟s
counsel stated that he was in agreement with the terms of the agreement as stated in the
announcement. At no point during the hearing did Father voice any objection to the
terms presented. Indeed, by way of counsel, he expressly provided his assent to the terms
of the agreement. Father did not attempt to express any personal dissatisfaction with the
announcement until several weeks after the trial court entered its June 3 order.

        Even assuming Father had repudiated the announced agreement before its terms
were memorialized in the June 3 order, however, we conclude that the agreement could
still be enforced upon the trial court‟s approval of it. Thus, even assuming the trial court
had construed Father‟s failure to sign the entered parenting plan as affirmative evidence
that he had repudiated the agreement, this would not have prevented the trial court from
otherwise enforcing the agreement upon finding that the agreement was in the child‟s
best interests. In Harbour v. Brown for Ulrich, 732 S.W.2d 598 (Tenn. 1987), the
Tennessee Supreme Court quoted the general rule outlined in Corpus Juris Secundum
applicable to the entry of consent judgments:

       The power of the court to render a judgment by consent is dependent on the
       existence of the consent of the parties at the time the agreement receives the
       sanction of the court or is rendered and promulgated as a judgment.

Id. at 599 (quoting 49 C.J.S. Judgments § 174(b)). In a number of decisions entered post-
Harbour, this Court has construed this language to indicate that consent of the parties is
not required at the time of the entry of judgment “if the parties‟ agreement previously
existed „at the time the agreement received the sanction of the court.‟” See, e.g., Envtl.
Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d 530, 536-37 (Tenn. Ct. App. 2000).
However, in order for a prior oral agreement to be enforceable under this exception, the
agreement “must have been made „in open court‟ or in a „hearing‟ wherein the fact and
the terms of the agreement were determined.” Id. at 537. Moreover, “[t]he terms of the
agreement must also be reflected in the record.” Id.

        In this case, there is no disputing that the parties agreed to a modified parenting
plan and that the material terms were announced in open court. The terms were recited in
detail by Mother‟s counsel and are preserved by a certified transcript of the proceedings.
Father never voiced any opposition to the terms of the agreement, but instead, he
consented to their adoption through his counsel. Moreover, we note that the agreement
was sanctioned by the trial court following the parties‟ announcement. In his closing
comments at the April 21 hearing, the trial judge stated, “I‟m glad that y‟all were able to

                                             6
work this out for the best interest of the child.” Again, even if the trial court assumed
Father had withdrawn his consent to the agreement by the time it entered the June 3
order, nothing prevented the trial court from enforcing the agreement upon confirming
that it was in the child‟s best interests. See Nesbitt v. Nesbitt, No. M2006-02645-COA-
R3-CV, 2009 WL 112538, at *6 (Tenn. Ct. App. Jan. 14, 2009) (concluding that Wife
was prevented from withdrawing her consent to agreed-upon parenting plan after the plan
was “read in detail to the court,” was accepted by the court, and the details of the
parenting plan “were preserved by a transcript of the proceeding”).5

       In short, we find no error in the trial court‟s decision to enter the June 3 order.
The parenting plan adopted by the court‟s order contained the terms that previously had
been announced in detail before the court. Contrary to Father‟s arguments, there was not
an absence of consent.6 His attempt to repudiate the agreement post-judgment does not
invalidate the consent that was previously established before the trial court.

       Although the trial court did not err in entering its June 3 order based upon the
announced agreement from the April 21 hearing, the question remains whether its June 3
order is legally sufficient. In his brief, Father challenges the validity of the order due to
the trial court‟s failure to make findings on (1) whether the parties knowingly and
voluntarily consented to the terms of the announced agreement, (2) whether or not a
material change of circumstance existed for the announced modification, and (3) whether
or not the announced modification was in the best interests of the child. According to
Father, the lack of specific findings on these topics gives cause for vacating the
modification order.

       With respect to the first two concerns, we find no error on the part of the trial
court. Although Father suggests that the June 3 order ran afoul of Tennessee Code
Annotated section 36-6-407(a) by failing to find that the parties‟ agreement was

5
  We acknowledge that in Nesbitt, the agreed-upon parenting plan was apparently signed by the parties
prior to the announcement that an agreement had been reached. Nesbitt, 2009 WL 112538, at *6.
Although the modified parenting plan was not signed at any point by the parties in the case at bar, we fail
to see how this fact distinguishes this case from the principle articulated in Nesbitt. What remains
important in light of the Environmental Abatement case is that an agreement was announced in open
court, the terms of the agreement were read in detail to the court, and the details of the agreement were
preserved by a transcript of the proceeding. The parenting plan ultimately adopted by the trial court‟s
June 3 order contains all of the substantive provisions announced at the April 21 hearing.
6
  At one point in his brief, Father argues that the June 3 order is deficient under Tennessee Code
Annotated section 36-6-101(a)(3)(C) because the attached parenting plan does not “contain the notarized
signature of both parties.” Tenn. Code Ann. § 36-6-101(a)(3)(C) (2014). We note that this statute was
not in effect when this case was filed or at the time of trial. Tennessee Code Annotated section 36-6-
101(a)(3)(C) did not go into effect until July 1, 2014. To the extent Father specifically relies upon this
statute to attack the validity of the June 3 order, his argument is without merit.


                                                    7
“knowing and voluntary,”7 we reject his contention. As we have already explained, the
parties‟ consent to the terms of the modified parenting arrangement was readily
established at the April 21 hearing. Both parties were present at the hearing, and no
objection of any kind was voiced with respect to the announced agreement. Moreover,
we disagree with Father that the trial court‟s June 3 order fails to reference the knowing
and voluntary nature of the parties‟ agreement. In incorporating the modified parenting
plan at issue, the trial court‟s order specifically states that “the parties heard the
announcement of the attorneys in open Court before the Court of their agreement as to
the terms of the Permanent Parenting Plan which shall be attached as Exhibit A and
incorporated by reference and made a part of this Order.”

       Concerning the lack of a finding pertaining to a “material change of
circumstance,” we do not believe the absence of such a finding invalidates the trial
court‟s modification order. Although “the threshold inquiry for a trial court faced with a
petition to modify . . . is whether a material change in circumstance has occurred,”
Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App. 2007) (citations omitted), we are
of the opinion that such an inquiry is not required when parties agree to modify a
parenting plan. As such, we do not find the language in Tennessee Code Annotated
section 36-6-101(a)(2)(C) to be controlling. Pursuant to that statute, parties seeking to
modify a court‟s prior decree pertaining to a residential parenting schedule “must prove
by a preponderance of the evidence a material change of circumstance affecting the
child‟s best interest.” Tenn. Code Ann. § 36-6-101(a)(2)(C) (2014). As we interpret it,
the statute only requires proof of a material change of circumstance in instances where
the petition to modify the residential schedule is contested. Indeed, we note that the
larger statutory scheme in Title 36 of the Tennessee Code appears to endorse the ability
of courts to approve modifications to parenting arrangements without the necessity of
proving a change in circumstance. For example, under Tennessee Code Annotated
section 36-6-404(c), courts are directed to approve a permanent parenting plan agreed to
by the parties “[w]ith a consent order to modify a final decree or judgment involving a
minor child.” Tenn. Code Ann. § 36-6-404(c) (2014).

       Our opinion on this issue, however, should not be construed as negating the
importance of proving a material change of circumstance in contested cases. As we
recently discussed in Canada v. Canada, No. W2014-02005-COA-R3-CV, 2015 WL
5178839 (Tenn. Ct. App. Sept. 4, 2015):

        The concept of requiring a parent seeking modification to prove a material
        change in circumstances originated out of this Court‟s recognition that
7
  In part, Tennessee Code Annotated section 36-6-407(a) provides that trial courts “shall approve
agreements of the parties allocating parenting responsibilities” if it finds that the agreement is “knowing
and voluntary.” Tenn. Code Ann. § 36-6-407(a)(2) (2014). In this case, the parties‟ announced
agreement included representations that Mother and Father would exercise joint decision-making
authority for the child.

                                                    8
       existing parenting orders are considered res judicata on the facts as they
       existed at the time the most recent order was entered. In that regard, the
       requirement “promotes finality, „prevents inconsistent or contradictory
       judgments, conserves judicial resources, and protects litigants from the cost
       and vexation of multiple lawsuits.‟” It would be a great inconvenience to
       the litigants, the courts, and the public, if either party, as often as he or she
       chose, could re-litigate questions of custody or support on the same or
       substantially similar facts. Additionally, the requirement serves the courts‟
       interests in preserving stable custodial relationships for the child and
       discouraging divorced parents from using the child as a pawn in their
       ongoing conflicts through repeated petitions to modify custody.

Id. at *6 (internal citations omitted). Suffice it to say, these types of considerations are
not present when parties are able to reach a mutual agreement on parenting issues. Given
the consent manifested by the parties in this case to modify the existing parenting
arrangement, we find no error in the absence of a finding concerning a “material change
of circumstance.”

        In practical terms, we note that requiring the trial court to make such a finding
would negatively impact the utility of reaching an agreement as to parenting issues.
Because a finding of a “material change of circumstance” must be supported by
competent proof, it cannot be made unless parties formally present that proof before the
trial court. We see no reason why parents who have agreed to modify a parenting
arrangement must be forced to spend time and attorneys‟ fees in an attempt to prove a
“material change of circumstance.” In the same vein, requiring such proof would be a
burden to judicial economy and efficiency. When parties have agreed that a change to
the existing parenting arrangement is necessary, trial courts should not be required to
spend judicial resources in addressing the question of whether a “material change of
circumstance” has actually occurred.

       Of course, we do not intend to suggest that the trial court should have no
involvement when parties reach an agreement as to parenting issues. Indeed, we agree
with Father that the June 3 order fails to include appropriate findings regarding the
child‟s best interests. Although parties may certainly reach an agreement to modify an
existing parenting arrangement, they cannot bind courts to approve agreements affecting
a child‟s best interests. This principle was discussed in detail by the Tennessee Supreme
Court‟s decision in Tuetken v. Tuetken, 320 S.W.3d 262 (Tenn. 2010). Tuetken involved
a post-divorce parenting dispute in which both parties agreed that a parenting arbitrator
would have authority to make decisions regarding the best interests of their children. Id.
at 264. After the father in Tuetken objected to one of the decisions made by the agreed-
upon parenting arbitrator, the trial court modified the arbitrator‟s ruling. Id. at 265-66.
Mother then filed an appeal and argued that the trial court had applied an incorrect
standard of review when it chose to modify the arbitrator‟s decision. Id. at 266.

                                              9
Although this Court affirmed the trial court‟s ruling when we reviewed the matter, our
Supreme Court subsequently granted permission to appeal. On appeal, the Supreme
Court exercised its supervisory role and specifically considered “whether Tennessee law
permits parties to submit to arbitration issues that implicate the trial court‟s duty to ensure
that the best interests of children are protected.” Id. at 271.

       In addressing this question, the Tuetken court observed that the “Tennessee
statutes, taken together, impose a duty on trial courts to protect the best interests of
children.”8 Id. It ultimately concluded that “parents cannot bind the court with an
agreement affecting the best interest of their children,” and as such, it held that “parties
may not submit parenting issues to binding arbitration.” Id. at 272. Since the opinion in
Tuetken was filed, this Court has had the chance to apply its guidance on a number of
occasions. Of particular note, for example, is Fletcher v. Fletcher, No. M2010-01777-
COA-R3-CV, 2011 WL 4447903 (Tenn. Ct. App. Sept. 26, 2011). The Fletcher case
involved a post-divorce custody dispute that arose when the mother in that case filed a
petition to modify the parties‟ existing custody order. Fletcher, 2011 WL 4447903, at *2.
Prior to a trial on the mother‟s petition, the parties participated in mediation. Id. After
the mediation proved successful, the father filed a motion to enforce the parenting plan
on which the parties had agreed. Id. The mother in Fletcher, who had repudiated the
agreement following mediation, contended that it was not in the children‟s best interests.
Id. She urged the trial court to set the mediated parenting plan aside and hold a hearing
in which the children would be permitted to testify concerning their custodial preference.
Id. After holding a hearing on Father‟s motion to enforce, the trial court granted his
motion. In its order, the trial court reasoned as follows:

               The Court finds that the Parenting Plan form is sufficient to find a
        contract. The proof at the hearing was the parties‟ intent was to resolve all
        issues raised by the case. Counsel represented both parties and the
        mediator signed off on the agreement along with both parties. Clearly there
        was a meeting of the minds to resolve the issues. Secondly the Court finds

8
  Among the statutes cited by the Tuteken court was Tennessee Code Annotated section 36-6-106(a).
This statute provides that in any proceeding requiring the court to make a custody determination
regarding a minor child, “the determination shall be made on the basis of the best interest of the child.”
Tenn. Code Ann. § 36-6-106(a) (2014). In its opinion, the Tuetken court noted that the trial court‟s duty
to protect a child‟s best interests “comport[ed] with the longstanding notion that the state stands in parens
patriae of the minor children within its borders.” Tuetken, 320 S.W.3d at 271. In quoting language from
a prior 1918 decision, the Supreme Court noted that it had previously described the State‟s rights over
children as follows: “[T]he state has a right „paramount to any parental or other claim, to dispose of such
children as their best interests require. The legal rights of a parent are very gravely considered, but are
not enforced to the disadvantage of the child.‟” Id. (quoting State v. West, 201 S.W. 743, 744 (Tenn.
1918)).




                                                     10
       that implicit in this mediation agreement is the understanding that it was
       proposed in good faith and in the best interest of the minor children. A
       review of the history of the parties‟ specific circumstances and the past and
       present circumstances of the minor children, (as gleaned from the Court
       file, the pleadings and from argument of counsel) the Court finds the
       mediation agreement is in the best interest of the minor children.

Id. at *4.

        In reviewing the case on appeal, we concluded that the trial court erred in applying
a contract analysis to the mediated parenting plan at issue. Id. at *8. We stressed that
that the trial judge should not be supplanted as “the ultimate arbiter of the best interest of
the children,” and observed that the trial judge appeared to have delegated the best
interest determination to the parties‟ lawyers. Id. Although we acknowledged that the
trial court‟s order contained a finding that the parenting plan was in the best interest of
the children, we concluded that the record did not provide a sufficient basis for making
such a determination. Id. at *9. In particular, we observed that the trial court had not
heard any proof relative to the allegations that had prompted the mother to file her
modification petition. Given the absence of a record upon which the trial court could
have made a best interest determination, we ultimately remanded the case for the trial
court to conduct an evidentiary hearing. Id. at *10.

        The animating concern from Tuetken and Fletcher cannot be ignored. Although
parties may agree to a given parenting arrangement, such an agreement does not obviate
the trial court‟s duty to ensure that it is in the children‟s best interests. As we stated in
Fletcher, “the trial judge, and the trial judge alone, has the solemn duty to determine
whether a given parenting arrangement is in the best interest of a child in his charge.” Id.
In this case, the trial court‟s June 3 order makes no finding as to whether or not the
agreed-upon terms are in the minor child‟s best interests. Although it is true that the trial
judge concluded the April 21 hearing by remarking that he was glad the parties had been
able to work out their dispute “for the best interest of the child,” there is no other
discussion on the issue of the child‟s best interests. The record is simply devoid of
sufficient findings that reflect the trial judge performed the solemn duty that is entrusted
to him alone. It is not even entirely clear from the trial judge‟s concluding oral statement
whether he considered the agreement to be in the child‟s best interests. Arguably, his
statement can be construed as expressing his satisfaction that the parties had been able to
reach a resolution on the best interest issue. The delegation of such an issue is not
permissible.

       Given the trial court‟s failure to conduct an appropriate best interests analysis, we
conclude that it erred in denying Father‟s June 25 motion to alter or amend or vacate.
That motion alerted the trial court to the fact that its June 3 order lacked findings on the
best interests issue, but the trial court never cured this error. Although the absence of

                                             11
findings on the best interests issue requires us to remand the case, we do not believe it is
appropriate to remand this case for the sole purpose of allowing the trial court to explain
why the agreed-upon parenting terms are in the child‟s best interests. Having reviewed
the record transmitted to us, we are compelled to remand not only for appropriate
findings, but also for an evidentiary hearing on the best interests issue. As in Fletcher, it
is not clear from the record whether sufficient evidence existed upon which the trial court
could have made a best interests determination. Here, although Mother apparently
offered some testimony at the beginning of the April 21 hearing, the record transmitted to
us is inconclusive as to the extent or nature of her testimony. The transcript of
proceedings from the April 21 hearing does not contain Mother‟s testimony, but rather,
includes only the recitation of the parties‟ announced agreement and the trial court‟s
resolution of three issues that are not a source of contention in this appeal and do not
have any relevance to the best interests issue. Under the circumstances presented, we
find it appropriate to remand this case to the trial court to hold a hearing on and to make
detailed findings of whether or not the agreed-upon terms of the modified parenting plan
are in the minor child‟s best interests.

       “[E]vents and lives have not stood still while this custody dispute has been in the
courts.” Maxwell v. Woodward, No. M2011-02482-COA-R3-CV, 2013 WL 2420500, at
*22 (Tenn. Ct. App. May 31, 2013) (quoting Gorski v. Ragains, No. 01A01-9710-GS-
00597, 1999 WL 511451, at *4 (Tenn. Ct. App. July 21, 1999)). The trial court should
remain mindful of this fact. As we have previously explained, “when a trial court is
directed to reconsider an issue on remand that involves the circumstances of children and
their parents, „the trial court should endeavor to ascertain and give effect to the parties‟
actual circumstances[.]‟” Kathryne B.F. v. Michael B., No. W2013-01757-COA-R3-CV,
2014 WL 992110, at *7 (Tenn. Ct. App. Mar. 13, 2014) (quoting In re C.W., 420 S.W.3d
13, 22 (Tenn. Ct. App. 2013)). In this case, the trial court‟s best interests determination
should consider the circumstances of the parties and minor child as they exist as of the
date of the hearing on remand.

       The trial court is in the unique position to determine the nature and extent of the
hearing to be conducted. As we stated in Fletcher, the record must simply reflect a
sufficient basis for determining whether the agreed-upon parenting arrangement is in the
best interests of the child. See Fletcher, 2011 WL 4447903, at *10. The same holds true
here. Although we are remanding for a hearing, we do not express an opinion on the
particular evidence that is to be heard or considered on remand. We simply hold that the
record must reflect a sufficient basis for making the bests interests determination. See id.


                                        Conclusion

      In light of the foregoing, we hereby vacate the trial court‟s June 3, 2014 order, and
remand the case to the trial court to hold a hearing on whether the announced agreement

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is in the minor child‟s best interests, and for findings of fact and conclusions of law on
this issue pursuant to Rule 52.01 of the Tennessee Rules of Civil Procedure. Costs of this
appeal are assessed one-half against the Appellant/Father, Jerone Trent Stricklin, and his
surety, and one-half against the Appellee/Mother, Dana Jo Stricklin, for all of which
execution may issue if necessary.



                                                _________________________________
                                                ARNOLD B. GOLDIN, JUDGE




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