                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                         Assigned on Briefs October 13, 2014

              ERIC BRYAN HOWARD v. KELLY JO HALFORD

               Appeal from the Juvenile Court for Cumberland County
                No. 2012-JV-2632     Larry Michael Warner, Judge




             No. E2014-00002-COA-R3-JV-FILED-DECEMBER 22, 2014


This case involves the trial court’s grant of a post-judgment motion to clarify conflicting
provisions regarding the residential co-parenting schedule in the parties’ agreed permanent
parenting plan. The mother filed the motion approximately five weeks after entry of the
permanent parenting plan order. Following a hearing at which the trial court considered
argument from both parties’ counsel but heard no proof, the court found in favor of the
mother’s interpretation of the parties’ intent when the order was submitted. The father now
appeals, asserting that the court’s ruling was a modification of the parenting plan made
without proof of a material change of circumstance warranting a modification. We determine
that the trial court’s order operated as a clarification of an ambiguous and contradictory
provision in the permanent parenting plan, rather than a modification of the plan. However,
because the trial court failed to hold an evidentiary hearing to determine the parties’ intent
at the time the agreed permanent parenting plan was entered, we vacate the judgment and
remand for an evidentiary hearing with subsequent clarification of the ambiguous provision
at issue.

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

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, C.J., and D. M ICHAEL S WINEY, J., joined.

Cynthia Fields Davis, Crossville, Tennessee, for the appellant, Eric Bryan Howard.

Justin C. Angel, Pikeville, Tennessee, for the appellee, Kelly Jo Halford.
                                              OPINION

                              I. Factual and Procedural Background

       The facts underlying this action are essentially undisputed. At the time the parties’
son, Colton (“the Child”), was born in September 2010, the plaintiff, Eric Bryan Howard
(“Father”), and the defendant, Kelly Jo Halford (“Mother”), were living together. The parties
subsequently separated, and Father began working offshore in Texas while maintaining his
domicile in Tennessee. On March 9, 2012, Father filed a petition to establish parentage,
requesting a DNA test to prove paternity, residential co-parenting time with the Child, and
establishment of child support.1 On June 6, 2012, the trial court entered a temporary order,
inter alia, granting Father’s request for a DNA test and ratifying a temporary agreement
reached by the parties as to residential co-parenting time. Mother was designated as the
primary residential parent, with Father to enjoy co-parenting time with the Child when he
was “home from his employment” “Monday through Friday while [Mother was] at work.”
Co-parenting time was also designated for Father during specific weekends in the two
months following the agreement.

       The parties proceeded to mediation on October 5, 2012, and subsequently filed a
mediated agreement on October 9, 2012. Pursuant to this agreement, the parties would
exchange the Child “the day after Father returns home from sea.” Father was then to “keep
[the Child] until the second weekend.” The Child would reside with Mother “from 6 p.m.
Friday until 6 p.m. Sunday each 2nd weekend.”

       Having received and reviewed the results of the DNA testing, the trial court entered
an order on January 4, 2013, declaring Father “the natural and biological father” of the Child.
The court entered a permanent parenting plan order, memorializing an agreement reached by
the parties. The permanent parenting plan, signed by both parties’ counsel, included the
following provision as to the residential schedule:

        DAY-TO-DAY SCHEDULE

        The X mother ____ father shall have responsibility for the care of the child or
        children except at the following times when the other parent shall have
        responsibility: The parties shall exchange the minor child on the day after
        the Father returns home from sea. The Father shall keep the minor child
        until the second (2nd) weekend with the Mother receiving parenting time


        1
        It is undisputed that Father consistently paid child support as ordered throughout the subsequent
proceedings, and child support is not at issue on appeal.

                                                  -2-
       from 6:00 p.m. on Friday to 6:00 p.m. on Sunday each second (2nd)
       weekend the Father is home from work.

       The Father shall also have responsibility for the care of the child at the
       additional parenting times specified below:

       From: Monday, Tuesday, Wednesday, Thursday and Friday from 8:00
                              Day and Time
       a.m. until 4:30 p.m.
       Day and Time

       ___ every week     ___ every other weekend X other: During the weeks
       while the Father is in town and the Mother is at work.

       This parenting schedule begins October 5, 2012 or ____ date of the Court’s
                                       Day and Time
       Order.

(Emphasis in original.)

        On February 15, 2013, Mother filed a “Motion for Clarification,” requesting that the
trial court clarify “conflicting language” contained within the permanent parenting plan.
Nine months later, the trial court heard argument of counsel on November 15, 2013. The
court subsequently entered a final judgment and revised permanent parenting plan on
December 9, 2013. Father’s co-parenting time within the day-to-day schedule set forth in the
final judgment was established as follows:

       [Father] shall have the parties’ minor child . . . when the Father returns home
       from sea, every other weekend from 6:00 p.m. on Friday to 6:00 p.m. on
       Sunday. The father shall also have the minor child when he is home from sea,
       during the day only, from 7:30 a.m. until 6:00 p.m. on Monday, Tuesday,
       Wednesday, Thursday, and Friday while the mother is at work. The child is
       to be in the mother’s care at night during the week.

(Emphasis in original.)

       In its final judgment, the trial court also granted a motion to withdraw previously filed
by Father’s trial counsel, Brett A. York. Attorney Cynthia Fields Davis subsequently filed
a notice of appearance on behalf of Father. Acting through Ms. Davis, Father timely
appealed the final judgment.

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                                     II. Issue Presented

       On appeal, Father presents one issue, which we have restated slightly:

        Whether the trial court erred by modifying the parties’ permanent parenting plan as
to the residential co-parenting schedule upon a motion for clarification of that schedule and
without hearing proof on the matter.

                                  III. Standard of Review

        We review a non-jury case de novo upon the record, with a presumption of correctness
as to the findings of fact unless the preponderance of the evidence is otherwise. See Tenn.
R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). We review questions
of law de novo with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint
v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)). A trial court’s decision to grant a
Tennessee Rule of Civil Procedure 60.01 motion to correct a clerical error in a judgment is
reviewed under an abuse of discretion standard. Jackman v. Jackman, 373 S.W.3d 535, 541
(Tenn. Ct. App. 2011). “Under the abuse of discretion standard, a trial court’s ruling ‘will
be upheld so long as reasonable minds can disagree as to propriety of the decision made.’”
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Scott, 33 S.W.3d 746,
752 (Tenn. 2000)).

    IV. Clarification of Conflicting Provisions in Residential Co-Parenting Schedule

        Father contends that the trial court erred when, in response to Mother’s motion for
clarification, it amended the permanent parenting plan order to substantively modify the
residential co-parenting schedule without any showing of a material change in circumstance
since entry of the permanent parenting plan. He further contends that the trial court erred by
analyzing the Child’s best interest as to the residential schedule without hearing proof on the
matter. Mother acknowledges the general rule that a trial court must find that a material
change in circumstance affecting the child has occurred before it considers whether a change
in the residential co-parenting schedule would be in the best interest of the child. See Tenn.
Code Ann. § 36-6-101(a)(2)(B) (2014); Armbrister v. Armbrister, 414 S.W.3d 685, 697-98
(Tenn. 2013). Mother’s argument is that in amending the permanent parenting plan order,
the trial court clarified a vague and ambiguous provision within the original order and thus
was correcting a clerical error, pursuant to Tennessee Rule of Civil Procedure 60.01, rather
than modifying the permanent parenting plan. We conclude that the trial court’s judgment
operated to clarify an ambiguous and contradictory provision, pursuant to Tennessee Rule
of Civil Procedure 60.01, but that in doing so, the court erred by making factual findings



                                              -4-
regarding the parties’ intended agreement without offering opportunity for the parties to
testify or present other relevant evidence.

        “Parenting arrangements for the parents of a non-marital child must be established and
modified using the same standards used in divorce cases.” In re C.R.D., No. M2005-02376-
COA-R3-JV, 2007 WL 2491821 at *6 n.5 (Tenn. Ct. App. Sept. 4, 2007) (citing Tenn. Code
Ann. § 36-2-311(a)(9)). Pursuant to Tennessee Code Annotated § 36-6-404(c)(1)(A), a court
shall approve a permanent parenting plan agreed upon by the parties with its entry of a final
decree or judgment. It is well established, however, that parties cannot “relieve the trial court
of its duty to ensure that disputes between parents are resolved in the best interests of the
children.” Tuetken v. Tuetkan, 320 S.W.3d 262, 272 (Tenn. 2010). The parties’ intent as to
their agreement should be considered as it was at the time the trial court entered the agreed
order. See Harbour v. Brown for Ulrich, 732 S.W.2d 598, 599 (Tenn. 1987) (“‘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.’”) (quoting 49 C.J.S. Judgments § 174(b)); see also In re Estate
of Creswell, 238 S.W.3d 263, 268 (Tenn. Ct. App. 2007).

       Regarding the general rule for interpreting orders and judgments, this Court has
explained:

       [A] judgment should be so construed as to give effect to every part of it and
       where there are two possible interpretations that one will be adopted which is
       in harmony with the entire record, and is such as ought to have been rendered
       and is such as is within the jurisdictional power of the court. Moreover, the
       judgment will be read in the light of the pleadings and the other parts of the
       record.

Lamar Adver. Co. v. By-Pass Partners, 313 S.W.3d 779, 785 (Tenn. Ct. App. 2009) (quoting
John Barb, Inc. v. Underwriters at Lloyds of London, 653 S.W.2d 422, 423 (Tenn. Ct. App.
1983)) (additional internal citations omitted).

       Although Mother invokes Rule 60.01 in her responsive brief on appeal, she did not
specify the rule as the basis for her motion for clarification in the motion itself. The
substantive text of her motion stated in its entirety:

              Comes now the Respondent, Kelly Jo Halford, by and through counsel,
       and moves this Honorable Court for a clarification of the Agreed Order and
       Parenting Plan entered in this cause on January 4, 2013, due to conflicting
       language in the permanent parenting plan.

                                               -5-
       Tennessee Rule of Civil Procedure 60.01 provides:

              60.01. Clerical Mistakes. – Clerical mistakes in judgments, orders or
       other parts of the record, and errors therein arising from oversight or
       omissions, may be corrected by the court at any time on its own initiative or on
       motion of any party and after such notice, if any, as the court orders. During
       the pendency of an appeal, such mistakes may be so corrected before the
       appeal is docketed in the appellate court, and thereafter while the appeal is
       pending may be so corrected with leave of the appellate court.

        No transcript of the November 15, 2013 hearing on the motion for clarification is
available. Following the filing of his notice of appeal, Father filed a statement of the
evidence, pursuant to Tennessee Rule of Appellate Procedure 24(c), essentially stating that
no proof was presented at the hearing. Mother subsequently submitted a statement of the
evidence to the trial court, which bears the trial court judge’s approval and signature. See
Tenn. R. App. P. 24(c), (e) (providing that “[a]ny differences regarding whether the record
accurately discloses what occurred in the trial court shall be submitted to and settled by the
trial court . . . .). We note also that in Father’s brief on appeal, he cites the trial court’s
language as quoted in Mother’s statement of the evidence and does not dispute the accuracy
of the statement. Mother’s statement of the evidence explains in pertinent part:

       1.     That this matter came to be heard on the 15th day of November, 2013
              upon a Motion for Clarification filed by [Mother].

       2.     That the Judge, the Honorable Larry M. Warner, examined the last
              entered Order in the file, discovered the ambiguous and vague
              language, and made his finding to clarify the Order.

       3.     That no new proof was presented, however, the Judge did examine the
              record, the court file, and the last entered Order.

       4.     That counsel for both parties made statements regarding the vague and
              ambiguous language in the last entered Order.

       5.     That the trial Judge did state that he was considering the child’s best
              interest and that he was clarifying the last entered Order in the child’s
              best interest of not being “bounced around from house to house” and
              [to] keep the child from being pulled away from his mother for
              extended periods of time when the father returned from working
              offshore.

                                              -6-
       Upon our careful and thorough review of the record, we determine that the trial court
properly treated Mother’s motion for clarification as a Rule 60.01 motion. See, e.g.,
Battleson v. Battleson, 223 S.W.3d 278, 288 (Tenn. Ct. App. 2006) (concluding that,
pursuant to Rule 60.01, the trial court properly clarified a parenting plan provision that did
“not make sense on its face” upon the mother’s motion to clarify the existing provision even
though the motion did not specify Rule 60.01 as its basis). The provision of the permanent
parenting plan at issue is ambiguous on its face and actually contradicts itself. Father could
not “keep the minor child” from an indeterminate day of his return through “the second (2nd)
weekend” and also have his co-parenting time end at 4:30 p.m. each weekday.

        Once this ambiguity had been brought to the trial court’s attention, the court did not
err by considering the entire record in determining the interpretation of the parenting plan
that would be “in harmony” with the parties’ previous agreements in the record. See Lamar
Adver., 313 S.W.3d at 786. However, we conclude that while the court clearly considered
indications in the previous temporary parenting plan and mediated agreement as to what the
parties’ intent was at the time of the permanent parenting plan’s entry, the court also based
its decision upon factual findings made without presentation of proof.

       Father asserts that the trial court’s comments made during the motion hearing,
specifically that it was considering the Child’s best interest of not being “bounced around
from house to house” and “pulled away from his mother for extended periods of time,”
demonstrated factual findings requiring a hearing of proof on the matter. We agree with
Father on this point. Although we are limited in our review of the November 15, 2013
hearing by the parameters of the approved statement of the evidence, it is clear that the trial
court reached conclusions regarding the parties’ agreement as to the residential schedule and
the Child’s best interest that were not based upon the court’s review of the record alone. We
therefore vacate the trial court’s order clarifying the ambiguity in the agreed permanent
parenting plan and remand for the court to (1) conduct an evidentiary hearing to determine
the parties’ intent at the time the agreed permanent parenting plan was entered and (2) clarify
the ambiguous provision accordingly.

                                       V. Conclusion

       For the reasons stated above, we vacate the judgment of the trial court. This case is
remanded to the trial court for proceedings consistent with this opinion. Costs on appeal are
taxed to the appellee, Kelly Jo Halford.


                                                    _________________________________
                                                    THOMAS R. FRIERSON, II, JUDGE

                                              -7-
