Mediation Required Before Filing a Petition to Litigate, In Tennessee

If the parties do not participate in Mediation prior to filing a post-divorce Petition to Modify a Parenting Plan, then the Petition shall be dismissed.

No. M2010-01642-COA-R3-CV.; Court of Appeals of Tennessee, at Nashville.; Assigned on Briefs March 23, 2011; Filed April 28, 2011.]

“Amy Blackwell (“Mother”) and William Wiseman (“Father”) were divorced on March 18, 2009 on the grounds of irreconcilable differences. The Final Decree of Divorce incorporated a Marital Dissolution Agreement and a Permanent Parenting Plan which, among other things, named Mother the primary residential parent of the parties’ minor son, set Father’s child support obligations, required Father to provide medical insurance for the child, and awarded Father visitation.”

“On March 22, 2010, Mother filed a Petition for Contempt and to Modify the Permanent Parenting Plan alleging a substantial and material change in circumstances. Specifically, Mother alleged that Father was consistently late for the exchange of the child; refused to allow the child to play T-ball; objected to the child enrolling in pre-kindergarten; badgered Mother regarding visitation; and allowed the child’s medical insurance to lapse. Mother requested the court to modify Father’s parenting time on alternating weekends; give her the sole decision making power regarding educational, religious, non-emergency health care, and extra-curricular decisions; require Father to immediately provide proof of health insurance; and to find Father in contempt.”

“Father filed an Answer denying that a substantial and material change of circumstance warranted the modification sought by Mother. Father averred that he asked Mother to attend mediation to resolve their disagreements regarding the child’s school and extracurricular activities, but she declined. He requested the court to “order the parties to mediate Mother’s petition.”

“Following a hearing, the court entered an order finding Father in civil contempt for failing to maintain health insurance on the child but did not impose punishment. The court further found a substantial and material change of circumstances…”

Father appeals, raising the following issues:
I. Did the trial court err by failing to require the parties to mediate their disputes before resorting to court for a modification of the parenting plan?
II. Did the trial court err by finding that there had been substantial and material change of circumstances and that the best interests of the parties’ child required a modification of the parenting plan?

The Court of Appeals ruled that the Trial Court should have dismissed the Petition because the parties did not participated in mediation prior to Mother filing her Petition to Modify.

“Tenn. Code Ann. § 36-6-404(a)(4)(F)….reflects the determination that, in the circumstances present, mediation should be undertaken prior to Court involvement. If the Court is to allow the parties to bypass mediation as permitted by § 36-6-404 (a)(4)(F), the facts in support of the Court’s action should be stated. On this record, we discern no reason for the failure of the parties to mediate the issues presented in accordance with the statute and the parenting plan.”

“For the foregoing reasons, the finding of a material change of circumstance and the modifications to the parenting plan ordered by the Trial Court are VACATED and the petition dismissed. The case is remanded for the taxing and collection of costs of the trial court proceeding. Costs of this appeal are assessed to [Mother] Amy C. Blackwell Wiseman.”

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