Material Change in Circumstance Necessary to Change Custody Arrangement; Standard for Automatic and Permissive Intervention

April 11, 2013
By The McKellar Law Firm, PLLC on April 11, 2013 12:06 PM |

In Garrett v. Garrett, No. E2012-02168-COA-R3-CV (Tenn. Ct. App. April 12, 2013), Tennessee divorce attorneys learn that courts require a material change in circumstances before modifying a permanent parenting plan; however, the material change standard is higher when a party wishes to change the designation of primary residential parent. Further, Tennessee divorce attorneys learn the terms under which a party can intervene in a pending action.

The facts: At the conclusion of a divorce action in Cumberland County, Mother was designated primary residential parent; however, Mother and Father were to share time with the children on a 50/50 basis. Mother then decided that the children should attend a different school nearer to her home. At Father's request, the trial court entered an ex parte order requiring the children to continue attending their original school. However, the local Board of Education averred that pursuant to its policy, the primary residential parent's residence determines which school a child must attend; therefore, the Board filed both a motion to intervene and motion to set aside the order. Mother felt that Father did not comply with the permanent parenting plan requirement that they make decisions jointly and therefore filed a motion to clarify the divorce decree. Father then requested to be named primary residential parent since Mother had disregarded the parenting plan by switching the children's school. After a hearing, the trial court found: (1) Mother violated the permanent parenting plan by switching the children's school; (2) legally, the Board was entitled to intervene; (3) that the children required stability; and (4) Father was designated primary residential parent as it was in the children's best interest.

The Appellate Court asserted that the issue of the Board's intervention, while not raised on appeal, was important. Essentially, if an individual wishes to automatically intervene in an action, he or she is required to establish: (1) that he or she requested to intervene in a timely fashion; (2) that a substantial legal interest in the subject matter of the pending litigation exists; (3) that [the] ability to protect that interest is impaired; and (4) that the parties to the underlying suit cannot adequately represent [that] interest. Tenn. R. Civ. P. 24.01. Further, the Court elaborated that the intervening party must "either gain or lose by direct operation of the judgment," and that the presence of a "mere contingent, remote, or conjectural possibility" that the intervening party will suffer consequences is not sufficient. In applying the above factors to the Board's intervention here, the Court averred that the Board's motion should not have been granted since the Board did not have a "substantial" interest in the case since the standard is "best interest of the child, regardless of any [opposing] policies that may be implicated."
However, there is another standard if a party wishes to permissively intervene, and it can be based on either a statutory conditional right or if "an applicant's claim or defense and the main action have a question of law or fact in common"; courts must assess any "undue[] delay or prejudice" to the original parties that could occur as a result of the intervention. Tenn. R. Civ. P. 24.02. Ultimately, the Court determined that the Board's intervention was not permissive since the trial court considered "the need for stability" while ignoring other factors and also incorrectly afforded more weight to the Board's policy than it did to the best interests of the children or the parents' rights.

Secondly, Mother challenged the fact that the trial court declined to hold an evidentiary hearing and neglected to determine if an unanticipated material change in circumstance occurred before changing the primary residential parent designation. However, Father said that Mother was at fault for not requesting an evidentiary hearing, that Mother's deciding to switch the children's school without consulting him constituted the requisite material change in circumstance, and that the court did not need to list and elaborate on every factor having provided adequate information in support of its findings; therefore, he asserted that Mother's issues should be waived at the appellate court level.

In response to these positions, the Court of Appeals explained that "material change in circumstances" is a standard for any change in custody, with the burden being with the parent who wants to modify; in determining whether such a change has occurred, courts must provide findings "as to the reason and facts" in favor of a decision to modify custody. Tenn. Code Ann. ยง 36-6-101(a)(2)(B). Also, the "threshold" to modify a primary residential parent designation is higher than that necessary to modify a residential parenting schedule.

The Court expressed that a situation no longer being in a child's best interest or a parent neglecting to follow the parenting plan would both serve as examples of "material change of circumstance." Included among factors that Tennessee courts are required to evaluate are whether: "(1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child's well-being in a meaningful way."

The Court explained that determining "the best interest of the child" is also crucial when courts are faced with requests to modify custody arrangements. In this case, the Court of Appeals concluded that the trial court neglected to make specific findings of fact regarding an unanticipated material change in circumstances, and that the possibility that the parents would reside outside the same school zone was foreseeable. As such, the Court held that Mother should remain the primary residential parent.