C.W.H. v. L.A.S. ( 2017 )

12/19/2017
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 6, 2017 Session
C.W.H. v. L.A.S.
Appeal by Permission from the Court of Court of Appeals
Juvenile Court for Hamilton County
No. 248546, 248547 Robert D. Philyaw, Judge
___________________________________
No. E2015-01498-SC-R11-JV
__________________________________
This is a custody case involving the minor children of unmarried parties. C.W.H.
(hereinafter “Father”) and L.A.S. (hereinafter “Mother”) agreed to a modification of an
existing parenting plan in 2013. Subsequently, Father learned information to which he
was not privy during the settlement conference, namely, that Mother had relocated from
her state of residence (Ohio) to Nevada with the parties’ minor children, where she was
employed as a prostitute. Father filed a motion for an emergency temporary custody
order and a temporary restraining order. Father prevailed in a hearing before the juvenile
court magistrate and was designated as the primary residential parent. Mother requested
a hearing before the juvenile court. Following a hearing, the juvenile court found a
material change in circumstances and upheld the magistrate’s determination. Mother
appealed to the Court of Appeals, which vacated and remanded the case for the juvenile
court to conduct a best interest analysis. On remand, the juvenile court affirmed its
earlier findings regarding a material change in circumstances and, in addition, concluded
that changing the primary residential parent from Mother to Father was in the best
interest of the children. Mother again appealed to the Court of Appeals, which concluded
“that the evidence preponderate[d], in part but significantly, against the juvenile court’s
factual findings,” reversed the juvenile court, and mandated that its order be carried out
within twenty days. We granted Father’s application for permission to appeal pursuant to
Tennessee Rule of Appellate Procedure 11 to decide, as set forth in Father’s application,
whether “the Court of Appeals err[ed] in reversing the [juvenile court] and awarding
Mother custody of the minor children” and whether “the Court of Appeals err[ed] in
ordering the change in custody prior to an opportunity for the Father to appeal to this
Court?” We answer both questions in the affirmative, reverse the decision of the Court of
Appeals, and remand this matter to the juvenile court for further proceedings consistent
with this opinion.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed; Remanded to the Juvenile Court
ROGER A. PAGE, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK, SHARON G. LEE, and HOLLY KIRBY, JJ., joined.
Randall D. Larramore, Chattanooga, Tennessee, for the appellant, C.W.H.
Alan R. Beard, Chattanooga, Tennessee, for the appellee, L.A.S.
OPINION
I. Procedural History and Facts
Mother and Father began a dating relationship in 2008. During that time, Father
lived in Pennsylvania and Mother lived in Ohio. Mother became pregnant with the
parties’ older child, P.H.,1 and gave birth to their son on January 22, 2009. Soon
thereafter, Mother moved to Chattanooga, Tennessee, and resided with her mother.
Father relocated two to three months later, in August 2009, and lived with Mother.
Father cared for P.H. as a stay-at-home father. The parties’ younger child, daughter
V.H., was born on June 27, 2010. Because Father had found employment, the parties
shared parenting responsibilities of both children.
In November 2010, the relationship deteriorated and the parties separated. Mother
planned to relocate to Ohio in pursuit of a master’s degree. To facilitate the move, the
parties entered into an agreed parenting plan in May 2011 to accommodate the distance
and address parenting time. The plan designated Mother as the primary residential parent
and allotted Father 144 days of parenting time per year. Mother relocated to Ohio in June
2011, but the children remained with Father until the end of the summer so that Mother
could acclimate to her new residence.
After having difficulties exercising his parenting time, in February 2012 Father
filed a petition in the Hamilton County Juvenile Court2 to modify the 2011 agreed
parenting plan. Prior to resolution of Father’s petition, Father contacted Mother in
January 2013 and confided in her that he and his new wife (hereinafter “Stepmother”)
1
To protect the anonymity of minors, it is the policy of this Court to refer to the children as well
as the parties by their initials.
2
Because the parties were never married, the juvenile court exercised jurisdiction over this
matter. Thus, the juvenile court acted as the trial court, or court of record, in this case.
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had an altercation the previous evening, which caused her to leave the home after
consuming alcohol. As a result, Stepmother was arrested and placed in jail until the
following day. While Stepmother was in jail, Father invited a female acquaintance to the
residence under the auspices of obtaining legal advice because the acquaintance’s
grandmother was an attorney. Instead, as the children were sleeping, Father and his
female acquaintance ingested cocaine that she brought with her. Because Stepmother
was still in jail, Father asked Mother to have her family assist with childcare in the
interim. Mother stated that she did so but that she also tried to protect Father’s image by
not divulging the reason that he requested help from her family. Father indicated that he
had not ingested cocaine since that date; he and Stepmother submitted to two separate
drug tests in July and October 2013 that yielded negative results.
During a February 2013 conference, Mother indicated that she was working as an
independent contractor in social work. She said she was seeking employment in different
states and that Nevada was one such state. Father had previously noted that in January
2013 when the children arrived in Tennessee for a visit, the children’s luggage bore
labels from Charlotte and Phoenix, but he was unaware that the children had visited the
western United States. The parties agreed upon a modified plan that addressed Father’s
concerns but left the residential parenting designation and the parenting time between the
parties as it was.3 The juvenile court issued an order incorporating the parenting plan on
March 1, 2013.
Shortly thereafter, Mother’s sister contacted Father and informed him that Mother
actually resided in Nevada with the minor children and that she was employed as a
prostitute. Father had believed that Mother resided in Ohio and worked as an
independent contractor. Father researched the internet and confirmed these assertions
when he found sexually explicit photographs and videos of Mother advertising her
services as a prostitute employed by the Moonlight Bunny Ranch in Nevada. He filed a
motion for an emergency temporary custody order and temporary restraining order on
3
The agreement also resolved issues of child support and medical bill arrearages that are not at
issue in this appeal. However, for clarity we note that the parties settled on a child support arrearage of
$2,527 and medical bill arrearage of $7,500. Mother offered testimony, but no supporting evidence, that
the medical bills actually totaled around $33,000. Attorney for Father briefly addressed Father’s child
support obligation at the hearing on February 26, 2014, and indicated to the juvenile court that Ohio
originally set the child support obligation for P.H. when the parties resided there around the time of his
birth, which was duplicative of Tennessee’s order of child support for the same child entered at the time
of the parties’ separation. Therefore, it is unclear from where the parties derived the amount of arrearage
and what amount, if any, amounted to duplicate payment.
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March 12, 2013. The magistrate found that a material change in circumstances had
occurred and that it was in the children’s best interest for Father to be designated as the
primary residential parent. Mother requested a hearing before the juvenile court, and the
juvenile court heard testimony on October 18, 2013, and December 2, 2013.
Relevant to this appeal, Mother testified at trial that she had previously been
employed as a prostitute in Nevada but that she was no longer so employed. She stated
that she accepted employment at the Moonlight Bunny Ranch for financial reasons due to
the large amount of debt she had accumulated pursuing her master’s degree and Father’s
failure to provide child support for the minor children. When questioned about why she
did not disclose her relocation to Nevada and her employment there, she stated that she
was not asked about it. At the time of trial, Mother was employed as a social worker, and
she provided documentation to that effect. She indicated that she would not return to
prostitution because that line of work seemingly affected the court’s decision with regard
to her continuing to be the primary residential parent and because the code of ethics of
her current career strictly forbade such work.
The juvenile court also heard testimony relative to the issue of Mother’s hostility
toward Father. In March or April 2011, before Mother’s departure to Ohio, Father met
Stepmother, whom he married in September 2011. Mother acknowledged having a
verbal altercation with Stepmother (before Father and Stepmother married) in the
restaurant at which Stepmother was employed. Mother, while actually on a date with
another man herself, learned from her date—who, unbeknownst to her, was a friend of
Father—that Father had been dating Stepmother during the pendency of Mother’s
relationship with Father. This revelation caused Mother to confront Stepmother and to
engage in the public altercation with Stepmother.
When Father attempted to exercise his parenting time with the children in August
2011 for his birthday, Mother refused to allow Father to visit with the children outside of
their daycare facility because Stepmother accompanied him on the visit. Father was
denied his parenting time over the Thanksgiving holiday in 2011; Mother became angry
and called the police, reporting that Father was attempting to kidnap the children.
Prior to Father’s and Stepmother’s wedding, Mother received an email from
Father’s account that she suspected had been sent by Stepmother. With the intent to
provoke Stepmother, Mother replied to the email and attached a sexually explicit
photograph of herself to the email. Mother refused to allow the minor children to
participate or even to attend Father’s and Stepmother’s wedding, and she repeatedly
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admonished the children that Father’s and Stepmother’s new baby, daughter C.H., was
not their sister. 4
During the pendency of the litigation in the juvenile court, Father sought and
obtained a position with a different restaurant management company that would allow
him to receive managerial training. Father was also able to provide health insurance for
the children through his new employer, and he provided copies of insurance cards for the
children to Mother at the hearing.
The juvenile court ruled in favor of Father, stating:
At the time of the hearing before the Magistrate on August 1, 2013,
Mother was still working full-time as a legal prostitute in Nevada. At the
time of the rehearing, Mother testified that she is now working full-time as
a social worker in Nevada.
Although Mother testified that she has no plans to work as a
prostitute any more, there apparently is no other reasonable tie for her in
Nevada. Mother’s extended family is in Chattanooga. Father’s wife’s
extended family is in Chattanooga. It is the Court’s opinion that Mother
lacks integrity on several issues, including this one.
While both Father and Mother have at times acted irresponsibly and
seemed to lack sound parenting judgment, the Court finds that there was a
material change in the circumstances of the children because of Mother’s
deceit, Mother’s occupation as a prostitute, and Mother’s hostility toward
Father and his wife.
Mother appealed the juvenile court’s ruling to the Court of Appeals. Without
addressing the juvenile court’s finding of a material change in circumstances, the
appellate court vacated the juvenile court’s order and remanded the case for the juvenile
court to conduct a best interest analysis. C.W.H. v. L.A.S., No. E2015-01498-COA-R3-
JV, 2016 WL 6426731, at *3 (Tenn. Ct. App. Oct. 31, 2016), perm. app. granted (Tenn.
Apr. 12, 2017) (citation omitted).
4
Mother also provided examples of instances of Father’s hostility toward her. For example,
preceding the December hearing, Mother had experienced difficulty exercising her weekly telephone
visits with the children and was only able to speak with them around once per week despite the order that
she have “unfettered” telephonic visits. In addition, Mother was supposed to have visitation with the
children after Thanksgiving, but Father would not respond to her requests for a meeting time and location
until she was actually on the airplane traveling to Chattanooga.
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On remand, the parties had the opportunity to present additional evidence but
declined to do so. By order dated July 10, 2015, the juvenile court reaffirmed its prior
findings of material change in circumstance and incorporated the required best interest
analysis. Specifically, pursuant to Tennessee Code Annotated section 36-6-106 (2014),
the juvenile court concluded: (1) that the children were more stable with Father, id. § 36-
6-106(a)(1); (2) that Father had been more willing than Mother to facilitate a relationship
between the children and the other parent due to Mother’s misgivings about Stepmother,
id. § 36-6-106(a)(2); (3) that Father recently had been promoted at work, maintained
insurance coverage for the children, and lived in a stable environment with the children,
id. § 36-6-106(a)(4), (10); (4) that Father lived near the children’s extended family, had
been the primary caregiver for some time, and had exercised the majority of parenting
time, and that Mother had relocated the children to Nevada where they have no family,
id. § 36-6-106(a)(5); (5) that Father had identified a possible speech delay in V.H. upon
her return from Nevada and promptly sought intervention, id. § 36-6-106(a)(7); (6) that
Mother had engaged in an occupation which, albeit legal in Nevada, constituted an
immoral act from which the children should be sheltered, id. § 36-6-106(a)(8); (7) that
Father had already been fully providing for the children’s educational needs, id. § 36-6-
106(a)(9); (8) that Mother had offered no proof concerning the character of the people
who would be visiting her home or that those visitors would not be engaged in acts
contrary to the best interests of the children, id. § 36-6-106(a)(12); and (9) that Mother
offered no proof regarding alternate child care arrangements should she be away from
home at night, id. § 36-6-106(a)(8), (14). The juvenile court found that factors one, two,
four, five, seven, nine, ten, and fourteen all weighed in favor of designating Father as the
primary residential parent. Id. § 36-6-106(a)(1), (2), (4), (5), (7), (8), (9), (10), (14).
Mother appealed the juvenile court’s ruling. In reversing the juvenile court’s
determination, the Court of Appeals concluded that neither the juvenile court’s finding of
Mother’s deceit nor her former employment as a prostitute constituted a material change
in circumstance without a finding of how the circumstances affected the children.
C.W.H., 2016 WL 6426731, at **5, 9. The Court of Appeals further concluded that the
evidence did not preponderate against the juvenile court’s factual findings of Mother’s
hostility toward Father and Stepmother or its finding that said hostility constituted a
material change in circumstances because it had affected the children. Id. at *11.
However, the Court of Appeals reasoned that the juvenile court abused its discretion in
determining that it was in the best interest of the children for Father to be designated as
the primary residential parent because the juvenile court relied heavily on Mother’s
employment as a prostitute and failed to consider in its analysis Father’s child support
arrearage and his ingesting cocaine in his home while the children were present. Id. at
*16. Father’s appeal to this Court followed. Upon our consideration, we hold that the
Court of Appeals improperly applied the well-settled standard of review as set forth in
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Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013); that the Court of
Appeals applied the incorrect version of the statute governing the requisite best interest
analysis, see Tenn. Code Ann. § 36-6-106; and that the appellate court erred in mandating
an immediate change of custody without allowing Father an opportunity to seek review
by this Court, see Brooks v. Carter, 993 S.W.2d 603, 610-11 & n.6 (Tenn. 1999) (citing
Tenn. R. App. P. 42(b)).
II. Analysis
Our consideration of this case requires us to address several points of law: (1)
emphasis of the appropriate standard of review to be employed in cases involving initial
custody determinations and/or modifications of primary residential parenting
designations; (2) clarification of the appropriate version of the statute to be utilized in
conducting a best interests analysis; and (3) propriety of the appellate court’s ordering the
immediate change of custody without an opportunity for review by this Court. After
reviewing each point in turn, we will discuss them as applied to the facts of this case.
A. Standard of Review
This Court has previously emphasized the limited scope of review to be employed
by an appellate court in reviewing a trial court’s factual determinations in matters
involving child custody and parenting plan developments. Armbrister, 414 S.W.3d at
692-93 (stating that the appropriate standard of “review of the trial court’s factual
findings is de novo upon the record, accompanied by a presumption of the correctness of
the findings, unless the preponderance of the evidence is otherwise”). Notably,
[a] trial court’s determinations of whether a material change in
circumstances has occurred and whether modification of a parenting plan
serves a child’s best interests are factual questions. Thus, appellate courts
must presume that a trial court’s factual findings on these matters are
correct and not overturn them, unless the evidence preponderates against
the trial court’s findings.
Id. at 692 (citations omitted). Indeed, trial courts are in a better position to observe the
witnesses and assess their credibility; therefore, trial courts enjoy broad discretion in
formulating parenting plans. Id. at 693 (citing Massey-Holt v. Holt, 255 S.W.3d 603, 607
(Tenn. Ct. App. 2007). “Thus, determining the details of parenting plans is ‘peculiarly
within the broad discretion of the trial judge.’” Id. (quoting Suttles v. Suttles, 748 S.W.2d
427, 429 (Tenn. 1988)). Appellate courts should not overturn a trial court’s decision
merely because reasonable minds could reach a different conclusion. Eldridge v.
Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
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On appeal, we review a trial court’s decision regarding parenting schedules for an
abuse of discretion. Armbrister, 414 S.W.3d at 693 (citing Eldridge, 42 S.W.3d at 88).
This Court stated, “‘An abuse of discretion occurs when the trial court . . . appl[ies] an
incorrect legal standard, reaches an illogical result, resolves the case on a clearly
erroneous assessment of the evidence, or relies on reasoning that causes an injustice.’”
Id. (quoting Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011)); see also Kelly
v. Kelly, 445 S.W.3d 685, 691-92 (Tenn. 2014) (applying same standard announced in
Armbrister—a case involving modification of a residential parenting schedule—to a trial
court’s initial primary residential parenting designation). “Appellate courts should
reverse custody decisions ‘only when the trial court’s ruling falls outside the spectrum of
rulings that might reasonably result from an application of the correct legal standards to
the evidence.’” Kelly, 445 S.W.3d at 696 (quoting Armbrister, 414 S.W.3d at 693); see
Eldridge, 42 S.W.3d at 88.
Based upon its observations of the witnesses at trial, the juvenile court concluded
that Mother “lacked integrity” on several issues. The Court of Appeals specifically
declined to defer to the juvenile court with regard to this finding vis-à-vis Mother’s
continued employment as a prostitute, in light of the documentary evidence to the
contrary. The appellate court also seemingly declined to extend deference to the juvenile
court’s finding regarding lack of integrity during its consideration of the other issues
addressed in its opinion. See, e.g., Kelly, 445 S.W.3d at 692-93 (stating that “appellate
courts should afford trial courts considerable deference when reviewing issues that hinge
on the witnesses’ credibility because trial courts are ‘uniquely positioned to observe the
demeanor and conduct of witnesses’” (quoting State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000)). While there was documentary evidence to negate the juvenile court’s
finding with regard to prostitution, our review of the record reveals no such evidence
sufficient to negate the deference owed the juvenile court as to this finding in other areas.
By declining to defer to the juvenile court on this matter, the Court of Appeals
improperly usurped the role of the juvenile court.
B. Material Change in Circumstances
After a permanent parenting plan has been incorporated into a final order or
decree, the parties are required to comply with it unless and until it is modified as
permitted by law. Armbrister, 414 S.W.3d at 697; see Tenn. Code Ann. § 36-6-405. “In
assessing a petition to modify a permanent parenting plan, the court must first determine
if a material change in circumstances has occurred and then apply the ‘best interest’
factors of section 36-6-106(a).” Id.; see Tenn. Code Ann. § 36-6-101(a)(2)(B)-(C).
With regard to a material change of circumstances, Father prevailed at trial by the
court’s finding three material changes: deceit on the part of Mother; Mother’s prior
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employment as a prostitute; and Mother’s hostility toward Father. The Court of Appeals
rejected both deceit and Mother’s prostitution, stating that those factors, without a
showing of how they affected the minor children, did not constitute material changes of
circumstances. C.W.H., 2016 WL 6426731, at *4-9. However, the Court of Appeals
agreed with the juvenile court’s conclusion that Mother had exhibited hostility toward
Father, therefore constituting a material change of circumstance. C.W.H., 2016 WL
6426731, at *10.
Father appealed the Court of Appeals’ decision reversing the primary parenting
designation to this Court. Mother did not seek review of any sort, including whether her
hostility toward Father amounted to a material change of circumstances. “The scope of
our review in this case depends, in large part, on the issues that the parties have presented
to this Court.” Hodge v. Craig, 382 S.W.3d 325, 333-34 (Tenn. 2012) (footnote omitted).
Subject to the exceptions contained in Tennessee Rule of Appellate Procedure 13(b),
none of which are implicated in this case, “issues are properly raised on appeal to this
Court when they have been raised and preserved at trial and, when appropriate, in the
intermediate appellate courts and when they have been presented in the manner
prescribed by [Tennessee Rule of Appellate Procedure 27].” Id.
As this Court stated in Hodge:
Appellees who have not filed a notice of appeal and parties who
have not filed a Tenn. R. App. P. 11 application of their own have three
options with regard to framing the issues on appeal. First, they may simply
accept the issues as framed by the appellant. Second, they may reframe the
issues presented by the appellant if they find the appellant’s formulation of
the issues unsatisfactory. Third, they may present additional issues of their
own seeking relief on grounds different than the grounds relied on by the
appellant or the party filing the Tenn. R. App. P. 11 application.
Id. at 335 (citing Tenn. R. App. P. 27(b)) (footnotes omitted). In this case, Mother, as
appellee, did not utilize any of the three approaches allowed by the rule. However, she
opted for a fourth option of filing a “sur-reply” brief to Father’s reply brief. The Rules do
not provide for such a filing. See Tenn. R. App. P. 27(c) (regarding reply briefs, an
“appellant may file a brief in reply to the brief of the appellee. If the appellee also is
requesting relief from the judgment, the appellee may file a brief in reply to the response
of the appellant to the issues presented by appellee’s request for relief” (emphasis
added)). Mother did not seek review of the decision of the Court of Appeals regarding
the juvenile court’s finding of hostility as a material change in circumstances, thus, she
was not entitled to any further briefing in this Court. The ruling of the juvenile court, as
affirmed by the Court of Appeals, constitutes an unappealed finding of a material change
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in circumstances. Accordingly, it is not necessary to delve into the quagmire of whether
legal prostitution in Nevada can serve as the basis for a material change in circumstances
in Tennessee, as such a determination is pretermitted by reliance on the unappealed
finding of the juvenile court. The juvenile court’s finding of Mother’s hostility toward
Father was affirmed by the Court of Appeals. The Court of Appeals’ affirmation of that
determination was not appealed to this Court.
C. Best Interest Analysis
Our conclusion that the evidence supports the juvenile court’s “finding of a
material change in circumstances answers only the threshold question in this modification
proceeding. It does not predetermine the outcome of the case.” Armbrister, 414 S.W.3d
at 705 (citing Boyer, 238 S.W.3d at 260). We must next consider whether the existing
parenting plan is no longer in the best interest of the children. See Tenn. Code Ann. § 36-
6-101(a)(2)(B) (noting that “a material change of circumstance may include, but is not
limited to, failures to adhere to the parenting plan or an order of custody and visitation or
circumstances that make the parenting plan no longer in the best interest of the child”).
The pertinent factors to be considered in the best interest analysis are set forth in
Tennessee Code Annotated section 36-6-106.
In reversing the juvenile court’s best interest analysis, the Court of Appeals
concluded that the juvenile court misapplied Tennessee Code Annotated section 36-6-106
by consulting the newer version of the statute as amended July 1, 2014, rather than its
predecessor. C.W.H., 2016 WL 6426731, at *11 n.8. Father filed the petition at issue in
this case in March 2013. The juvenile court conducted the hearings in October and
December 2013 and filed its initial order in December 2013. The Court of Appeals
issued its mandate on January 8, 2015, at which time the newer version of section 36-6-
106 was in effect.
Before considering the merits of the best interest analysis conducted by the
juvenile court, we must first address whether the juvenile court properly applied the
factors as set forth in the 2014 amendment to Tennessee Code Annotated section 36-6-
106 or whether the version of the statute in effect in 2012 should have governed the
juvenile court’s analysis.
This Court has held that
[g]enerally[,] statutes are presumed to operate prospectively and not
retroactively. Woods v. TRW, Inc., 557 S.W.2d 274, 275 (Tenn. 1977);
Cates v. T.I.M.E., DC, Inc., 513 S.W.2d 508, 510 (Tenn. 1974). An
exception exists, however, for statutes which are remedial or procedural in
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nature. Such statutes apply retrospectively, not only to causes of action
arising before such acts become law, but also to all suits pending when the
legislation takes effect, unless the legislature indicates a contrary intention
or immediate application would produce an unjust result. Saylors v.
Riggsbee, 544 S.W.2d 609, 610 (Tenn. 1976).
Kee v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn. 1993). “The usual test of the
‘substantive’ or ‘procedural’ character of a statute for this purpose is to determine
whether or not application of the new or amended law would disturb a vested right or
contractual obligation.” Saylors, 544 S.W.2d at 610 (citations omitted). This Court
further stated that “procedure” is defined as:
[T]he mode or proceeding by which a legal right is enforced, as
distinguished from the law which gives or defines the right, and which by
means of the proceeding, the court is to administer—the machinery, as
distinguished from its product; . . . including pleading, process, evidence,
and practice . . . . Practice [is] the form . . . for the enforcement of rights or
the redress of wrongs, as distinguished from the substantive law which
gives the right or denounces the wrong. . . .
Id. (quoting Jones v. Garrett, 386 P.2d 194, 198-99 (Kan. 1963)) (alterations in original).
The statute at issue in this case created no rights and imposed no liabilities. See, e.g.,
Saylors, 544 S.W.2d at 610. It merely governed the mechanism by which a trial court
should conduct a best interest analysis. As such, the statute is procedural in nature, and
the version in effect at the time of the juvenile court’s 2015 order should have been
applied. Apparently the parties understood the 2014 version to contain the correct
analysis, as both parties relied upon the 2014 amendment in their briefings to the juvenile
court in support of the best interest analysis. The juvenile court properly applied the
2014 version of Tennessee Code Annotated section 36-6-106, and the Court of Appeals
erred in holding otherwise.5
However, this error is not outcome-determinative. Our conclusion would be the
same under either version of the statute. In this case, the juvenile court considered the
5
This Court has previously held that a trial court does not err by referencing a statutory
amendment with an effective date that accrued at a later time, because the amended legislation “reflected
the General Assembly’s most recent policy statement on the question before the trial court and was not a
change in policy but a more specific statement of the policy already expressed in other statutes.”
Armbrister, 414 S.W.3d at 706 n.22.
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appropriate statutory factors. The juvenile court also referenced the statute, which
became effective July 1, 2014, directing the court to “order a custody arrangement that
permits both parents to enjoy the maximum participation possible in the life of the child
consistent with the factors set out in subsection (a), the location of the residences of the
parents, the child’s need for stability and all other relevant factors.” Tenn. Code Ann. §
36-6-106(a). Upon evaluating all of the relevant factors, the juvenile court concluded
that modifying the parenting schedule and the primary parenting designation was in the
children’s best interests. The evidence does not preponderate against this finding.
For the above reasons, we hold that the evidence presented at trial did not
preponderate against the juvenile court’s factual findings and that the juvenile court did
not abuse its discretion in designating Father as primary residential parent. We reverse
the Court of Appeals’ decision.
D. Court of Appeals’ Mandate to Transfer Custody
In its opinion, the Court of Appeals decreed “that the children be delivered to
Mother in Nevada by way of commercial air flight no later than twenty days following
the entry of this order.” C.W.H., 2016 WL 6426731, at *16. The court provided no
reason for mandating an almost immediate transfer of custody without affording Father
the opportunity to file a timely permission to appeal in this Court.
Father petitioned for rehearing in the Court of Appeals with respect to execution
of the court’s mandate, or in the alternative, a motion for a stay to permit him time to file
a Rule 11 application for permission to appeal. See Tenn. R. App. P. 11. Without
explanation, the appellate court summarily denied Father’s petition and motion.
Tennessee Rule of Appellate Procedure 42(a) provides:
(a) Definition; Issuance; Stay on Petition for Rehearing. Copies, certified by
the clerk of the appellate court, of the judgment, any order as to costs or
instructions as to interest, and a copy of the opinion of the appellate court
shall constitute the mandate.
....
The clerk of the Court of Appeals and Court of Criminal Appeals shall
transmit to the clerk of the trial court the mandate of the Court of Appeals
or Court of Criminal Appeals, with notice to the parties, 64 days after entry
of judgment unless the court orders otherwise. The timely filing of a
petition for rehearing will stay the mandate until disposition of the petition
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unless the court orders otherwise. The mandate shall issue 64 days after
denial of the petition for rehearing or, if the petition for rehearing is
granted, 64 days after entry of judgment on rehearing.
Clearly, the appellate courts’ authority to alter the sixty-four day window for issuance of
a mandate is within the ambit of the rule.
We disagree with the Court of Appeals’ apparent invocation of the exception
contained in Rule 42 in this case. Here, the children had been in Father’s custody since
August 2013 and had remained with Father until the court issued its opinion in October
2016. This Court has warned against the potential harm involved when an intermediate
appellate court expedites the issuance of its mandate or orders that the mandate not be
stayed in child custody cases:
For instance, if a trial court awards custody of a minor child to her mother,
and later that the Court of Appeals reverses the trial court’s decision and
awards custody to the father and orders the immediate issuance of mandate,
and the Supreme Court grants a Tenn. R. App. P. 11 application filed by the
mother and reverses the Court of Appeals’ decision, custody of the child
will have changed from the mother, to the father, and ultimately back to the
mother. Such a chain of events would likely be harmful to the welfare of
the child.
While not expressly prohibited by Tenn. R. App. P. 42, we find that in a
child custody case, such as this, the Court of Appeals’ February 24, 1999
order directing that mandate be issued was ill-advised. Because the Father
timely filed a Tenn. R. App. P. 11 application for permission to appeal, the
issuance of mandate should have been stayed pending final disposition by
this Court. Tenn. R. App. P. 42(b).
Brooks v. Carter, 993 S.W.2d 603, 610-11 (Tenn. 1999). This Court further explained:
Rule 42(a) of the Tennessee Rules of Appellate Procedure provides that
mandate shall issue after the sixty-four day period “unless the court orders
otherwise.” (Emphasis added). We acknowledge that the rule is designed
to enable the Court of Appeals to direct the immediate issuance of mandate
if the context warrants such an order. For instance, if a child custody case
involves a situation in which the Court of Appeals reasonably believed that
a child would be in danger in the event that the parent awarded custody by
the trial court retained custody while the issuance of mandate was stayed
pursuant to Tenn. R. App. P. 42, the Court of Appeals may justifiably direct
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that mandate be immediately issued. In the present case, however, no risk
of danger was alleged . . . .
Id. at 610, n.6 (additional emphasis added). In this case, as in Brooks, there was no
allegation of either potential or immediate danger if the children remained in Father’s
custody.
We reiterate that in cases such as this, without allegations or evidence of abuse of
or potential danger to the children or other compelling reason to expedite, it is error to
order immediate issuance of an intermediate appellate court mandate.
E. Father’s Claim for Attorneys’ Fees
In the Court of Appeals, Father appealed the juvenile court’s denial of his
attorneys’ fees. The Court of Appeals affirmed the juvenile court’s ruling, given the
broad discretion vested with the juvenile court in ruling on such a matter. C.W.H., 2016
WL 6426731, at *16. We note that Father did not argue the Court of Appeals’ decision
as error in this Court. Therefore, his claim for attorneys’ fees is deemed waived. See
Hodge v. Craig, 382 S.W.3d at 334 (stating that for an issue to be properly raised on
appeal, it must be presented to this Court in the manner prescribed by Tennessee Rule of
Appellate Procedure 27).
CONCLUSION
We emphasize that pursuant to Armbrister, the juvenile court should be afforded
great deference to its findings of fact and analyses. In this case, the Court of Appeals
declined to extend such deference to the juvenile court. Accordingly, it failed to
accurately apply the standard of review and committed reversible error. We further
conclude that Mother’s hostility toward Father, as found by the juvenile court and
affirmed by the Court of Appeals, constituted an unappealed finding of a material change
in circumstance that was not challenged in this Court via Mother’s additional
unauthorized filing. We hold that the juvenile court properly applied the statutory factors
governing a best interest analysis and that its conclusion was not an abuse of discretion.
As such, the Court of Appeals’ decision to the contrary is reversed. Moreover, the Court
of Appeals erred in mandating an immediate change in custody without giving Father the
opportunity to appeal to this Court. Father’s claim for attorney’s fees in the Court of
Appeals is deemed waived in this appeal for failure to raise the issue in the Rule 11
application or in his brief. The decision of the Court of Appeals is hereby reversed, and
this cause is remanded to the juvenile court to effect an expeditious return of the children
to the physical custody of Father in a manner least disruptive to their welfare. See, e.g.,
Keisling v. Keisling, 92 S.W.3d 374, 380 (Tenn. 2002); In re Adoption of Female Child,
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896 S.W.2d 546, 548 (Tenn. 1995). Costs of this appeal are taxed to Mother, for which
execution may issue.
_______________________________
ROGER A. PAGE, JUSTICE
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