Caroline Brown Smithwick v. Fred Barksdale Smithwick, IV

Appellant/Mother appeals the trial court’s grant of Appellee/Father’s post-divorce petitions to modify the permanent parenting plan and for contempt. The trial court changed the children’s primary residential parent from Mother to Father. Although the trial court made a change in custody, it applied Tennessee Code Annotated section 36-6-101(a)(2)(C), which addresses modification of a residential schedule. Tennessee Code Annotated section 36-6-101(a)(2)(B), which addresses modifications of custody, is the applicable statute. The trial court also charged Mother with one child’s tuition. In doing so, the trial court failed to comply with the requirements of the Child Support Guidelines. As such, we vacate the order: (1) modifying the permanent parenting plan; (2) modifying the Child Support Worksheet, and (3) charging Mother with the child’s private school tuition. The trial court also charged Mother with retroactive child support, found her guilty of three counts of civil contempt for alleged violations of the permanent parenting plan, and ordered her to pay Father’s attorney’s fees as punishment for the contempt. Because the record does not support the trial court’s findings of contempt, we reverse the contempt holdings and the award of attorney’s fees to Father. Because there is no basis for an award of retroactive child support, we also reverse that holding.