Tennessee Supreme Court Reverses Child-Custody Change in Chattanooga: C.W.H. v. L.A.S.

Facts: Mother and Father, who were never married, entered an agreed parenting plan establishing a long-distance parenting schedule because of Mother’s relocation with the children to Ohio (and later Nevada). The agreed parenting plan designated Mother as the primary residential parent.

Shortly thereafter, Father petitioned to change custody because the agreed parenting plan was procured by fraud. Specifically, Father claimed Mother represented in their negotiations she was working as an “independent contractor.” Father later learned that Mother actually was working as a licensed sex worker in Nevada at the Moonlight Bunny Ranch.

At the hearing, the proof showed the children were not exposed to Mother’s occupation. By the time of trial, Mother was out of the sex-worker business; instead, she was employed as a social worker in Nevada after having received her master’s degree in social work and her provisional license from Nevada for social work.

Tennessee child cusodyThe trial court found there was a material change in circumstances for the children because of Mother’s deceit, her occupation as a sex worker, and her hostility toward Father. The trial court further found it was in the children’s best interest that custody be changed to Father. Notably, the trial court conducted no statutory best-interest analysis of any sort.

Mother appealed. The Court of Appeals remanded the case to the trial court to conduct the statutory best-interest analysis. I covered that appeal here.

On remand, neither party presented new evidence. The trial court conducted the required best-interest analysis and, again, ruled to change custody from Mother to Father. For the second time, Mother appealed. And for the second time, the Court of Appeals reversed the trial court. I covered that appeal here.

Specifically, the Court of Appeals found the trial court based much of its analysis on its finding that Mother’s work as a sex worker was ongoing, which finding the Court of Appeals found to be entirely speculative and contradicted by the evidence. The Court of Appeals ordered Father to deliver the children to Mother in Nevada “no later than 20 days following the entry of this order.”

Father petitioned for rehearing in the Court of Appeals regarding execution of the 20-day mandate, or in the alternative, a motion for a stay to permit him time to file a Rule 11 application for permission to appeal. Without explanation, the Court of Appeals summarily denied Father’s petition and motion.

Father’s request for permission to appeal was granted by the Tennessee Supreme Court.

On Appeal: The Tennessee Supreme Court reversed the Court of Appeals.

Standard of review. The Supreme Court began by emphasizing “the limited scope of review to be employed by an appellate court in reviewing the trial court’s factual determinations in matters involving child custody and parenting plan developments.” (Emphasis in original.)

Appellate courts in Tennessee review a trial court’s decision regarding parenting schedules for an abuse of discretion. An abuse of discretion occurs when the trial court applies 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. Appellate courts should only reverse custody decisions when the trial court’s ruling falls outside the spectrum of rulings that might reasonably result from applying the correct legal standards to the evidence.

Applying this limited standard of review, the Supreme Court viewed the evidence differently than the Court of Appeals:

Based upon its observations of the witnesses at trial, the [trial] court concluded that Mother “lacked integrity” on several issues. The Court of Appeals specifically declined to defer to the [trial] 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 [trial] court’s finding regarding lack of integrity during its consideration of the other issues addressed in its opinion. While there was documentary evidence to negate the [trial] court’s finding with regard to prostitution, our review of the record reveals no such evidence sufficient to negate the deference owed to the [trial] court as to this finding in other areas. By declining to defer to the juvenile court on this matter, the Court of Appeals improperly served the role of the [trial] court.

* * * * *

We emphasize that . . . the [trial] 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 [trial] court. Accordingly, it failed to accurately apply the standard of review and committed reversible error.

20-day mandate. Tennessee Rule of Appellate Procedure 42(a) requires the appellate court clerk to transmit the mandate of the Court of Appeals to the trial court clerk “64 days after entry of judgment unless the court orders otherwise.” Tennessee courts have held that if a child-custody case involves a situation in which the appellate court reasonably believes that a child will be in danger if the mandate was stayed under Rule 42, the appellate court may justifiably direct that the mandate the immediately issued.

The Supreme Court found no such justification here:

We disagree with the Court of Appeals’ apparent indication of the exception contained in Rule 42 in this case. Here, the children have 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.

* * * * *

In this case, 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.

Thus, the decision of the Court of Appeals was reversed, and the case remanded to the trial court “to effect an expeditious return of the children to the physical custody of Father in a manner that is least disruptive to their welfare.”

K.O.’s Comment: (1) In one comment I wrote about the Court of Appeals’ decision, I said “it is rare for the Court of Appeals to find that the trial court abused its discretion. This case is among the few that show it can happen.” So much for that. That rare outcome just became even rarer. The moral of the story is that Tennessee family-law attorneys cannot rely on the appellate courts to save them from a bad outcome at trial. Every effort must be made to win cases at the trial-court level.

(2) Because Mother did not appeal the trial court’s finding that her hostility towards Father constituted a material change of circumstances, the Supreme Court determined 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.” Is that really a “quagmire”? If Mother were employed in the multibillion-dollar cannabis industry in Colorado — another job that would be illegal in Tennessee — does anyone think the Justices would be similarly conflicted, particularly where, as here, there is no evidence the parent’s legal employment affected the children’s well-being in any way?

(3) Did the Court of Appeals really apply the wrong standard of review? They unanimously concluded that the evidence preponderates against the trial court’s findings, and I found their rationale convincing. That is the proper standard of review. Although I don’t have access to the entire record, I suspect I would’ve dissented if I were on the Supreme Court. The trial court improperly based much of its reasoning on its moral disapproval of Mother’s legal employment, which employment had no impact on the children. That shouldn’t result in the drastic remedy of a change of custody, in my opinion.

CW.H. v. L.A.S. (Tennessee Supreme Court, December 19, 2017).

Posted by

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.

Leave a Comment