No-Show Attorney Leads to Parental Relocation in Memphis, Tennessee: Allen v. Allen

Facts: Mother and Father are the divorced parents of one child. Their agreed parenting plan gave Mother 225 days of parenting time to Father’s 140 days.

Eight months later, Mother notified Father that she intended to relocate to California with the child. Father petitioned in opposition to the relocation and to change custody.

Mother presented her proof on the first day of trial. Father was to present his proof when the trial resumed the following month.

Tennessee parental relocation

Neither Father nor his attorney appeared when the case was called on the scheduled date, although Father claims he was waiting for his lawyer outside the courtroom. Father’s attorney emailed the clerk that day to state he was in another court and would come to the trial court when he could. The trial court dismissed Father’s petitions for failure to prosecute:

[Father’s] petitions were dismissed based on counsel for [Father] not being present after having been warned on one previous occasion not to be late without notifying the Court as to his status. Although [Father’s] counsel had been late numerous times on previous occasions, he was only warned by the Court one previous time that if he was late without giving the Court notice, his matter . . . would be dismissed.

Based on the evidence it heard, the trial court approved Mother’s relocation to California with the child. A new parenting plan was entered that reduced Father’s parenting time from 140 days to 130 days.

Father appealed.

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

Tennessee trial courts possess the inherent authority to control their dockets and the proceedings in their courts. Their authority is broad and includes the express authority to dismiss cases for failure to prosecute, failure to comply with the Rules of Civil Procedure, or failure to comply with court orders.

While trial courts may dismiss cases for lack of prosecution, this authority should be used sparingly and with great care.

The Court approved the trial court’s dismissal of Father’s petition:

We recognize that dismissal of an action is a harsh sanction by the trial court; nonetheless, it is one specifically authorized by [Rule 41 of] the Tennessee Rules of Civil Procedure. In the instant case, the trial court declared that neither Father nor his attorney was present before the trial court when the case was called at 10:00 a.m. on the scheduled hearing date. According to the trial court, Father’s attorney had been tardy for hearings on several occasions and had been admonished by the court on one prior occasion that if he were tardy again without informing the trial court in advance, the trial court would dismiss the attorney’s client’s action or proceed in the attorney’s absence. . . .

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[The Tennessee] Supreme Court has elucidated that “as a general rule, an action may be dismissed or a nonsuit granted because of the plaintiff’s failure to appear and prosecute his case, or for his failure to prosecute his case diligently.”

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Upon a thorough review of the record, we determine that the trial court sufficiently explained its rationale for dismissing Father’s petitions. We further conclude that the trial court did not act unreasonably, arbitrarily, or unconscionably.

The trial court’s judgment approving Mother’s relocation to California with the child was affirmed.

Allen v. Allen (Tennessee Court of Appeals, Western Section, September 28, 2018).

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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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