After-The-Fact Order of Reference Leads to Reversal in Memphis Custody Dispute: Crafton v. Roberts

Facts: Mother and Father, the parents of two children, divorced in 2007. Father was designated the primary residential parent for the youngest child, and Mother was designated the primary residential parent for the oldest child.

In 2010, Father petitioned to modify the parenting schedule. Mother counter-petitioned to change custody of the youngest child and to limit Father’s parenting time.

refereeA multi-day trial took place in 2011. After several days of trial, the trial court entered a temporary parenting schedule pending the resumption of the trial two months later.

After the trial resumed two months later, the trial court ruled its temporary parenting schedule would be made permanent. Regarding the child support dispute, the trial court indicated it refers such matters to the “divorce referee.”

Father then filed a petition to modify child support. Mother responded with a motion requesting the trial court enter orders regarding the earlier proceedings and refer disputes over child support to the divorce referee.

Proceedings eventually took place before the divorce referee in late 2011 and early 2012. In addition to addressing the child support issues, the referee ruled Mother should be designated the primary residential parent for both children.

The same day the divorce referee’s recommendations were filed with the trial court in July 2012, the trial court entered an order appointing the divorce referee as a Special Master pursuant to Rule 53 of the Tennessee Rules of Civil Procedure. The order of reference purported to refer “all outstanding matters” to the divorce referee acting as a Special Master, including the construction of a permanent parenting plan. The order was entered in July 2012 nunc pro tunc, with a stated effective date of October 28, 2011.

While Father filed objections to the Special Master’s report, the trial court ultimately adopted the Special Master’s findings and recommendations.

Father appealed.

On Appeal: The Court of Appeals reversed the trial court.

Among other things, Father argued the after-the-fact, nunc pro tunc order of reference was improper.

The general rule is that to justify a nunc pro tunc order there must exist some memorandum or notation found among the papers or books of the presiding judge, and a nunc pro tunc order will not be valid unless there is some such memorandum showing what judgment or order was actually made. The written notation or memorandum found must indicate the intent of the trial court to enter the judgment on the earlier date.

After reviewing the record, the Court concluded:

Here, there is no evidence in the record indicating that the trial court, on or before October 28, 2011, intended to refer all outstanding matters to the divorce referee for a Special Master hearing. We would thus agree with Father that the nunc pro tunc entry of the July 2012 order of reference was improper. Moreover, we fail to see how the referee could have, in good faith, delved into issues as a Special Master for which there was no controlling order of reference as contemplated by Rule 53.02 of the Tennessee Rules of Civil Procedure.

Thus, Father was never put on notice that parenting issues were being submitted to the Special Master. Moreover, the Court explained:

[T]here is a lack of findings evidencing that the trial court performed the two-step analysis required for a custody modification. First, there is not a finding of a material change in circumstance in either the referee’s written report or the trial court’s order adopting it. Second, there is an absence of an appropriate best interest analysis.

For these reasons (and a few others), the trial court was reversed.

K.O.’s Comment: (1) In footnote no. 5, the Court discusses a split among the sections of the Court of Appeals regarding the scope of what can be referred to a Special Master.

Rule 53.02 states that “[t]he order of reference to the master may specify or limit the master’s powers and may direct the master to report only upon particular issues . . . .”

The Court cites several opinions from the Eastern Section holding the trial court “may refer all issues, including the main issue of controversy, without limitation and without abdicating its judicial authority to make the ultimate determination.” According to this line of cases, there is nothing in Rule 53 that precludes a special master from addressing the entirety of the issues in a case.

The Court then cites several opinions from the Western Section holding that referrals to a special master are “limited to collateral, subordinate, and incidental issues and the ascertainment of ancillary facts, while the main issues in controversy and the principles on which these issues are to be adjudicated must be determined by the trial court.” The Court explains that “other judicial decisions have acknowledged a limitation on Special Master referrals despite the apparent breadth of the Rule.

After acknowledging this split of authority, the Court expressed its concern about referring something as consequential as custody matters to a special master. While I disagree with the Western Section’s interpretation of Rule 53, I certainly agree the best practice is for child custody matters to be resolved by the judge, not a special master.

(2) It is also worth noting that Father was pro se both at the trial court level and on appeal. There have been several successful appeals by pro se parties in the past month or two. It doesn’t happen often, but it can happen.

Crafton v. Roberts (Tennessee Court of Appeals, Western Section, December 28, 2015).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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