Facts: Mother and Father are the unmarried parents of Child. Mother lives in Memphis, and Father has lived in other states.

In January 2018, Father petitioned to change their parenting plan to let Child fly as an unaccompanied minor for visitation with Father.

The hearing occurred over three years later. On October 29, 2021, the juvenile court magistrate granted Father’s request to let Child fly unaccompanied on nonstop flights until age 13; after 13, Child could fly unaccompanied on flights involving multiple stops.

Mother immediately requested a de novo rehearing by the juvenile court judge per TCA § 37-1-107(d). At the time, the statute allowed for a de novo hearing before the juvenile court judge.

After several years of inactivity, the de novo rehearing was scheduled for June 5, 2023.

On April 25, 2023, an amendment to § 37-1-107(d) went into effect that eliminated the option to ask for a de novo hearing with the juvenile court judge; instead, it imposed more specific requirements that limited the juvenile court judge’s review of a magistrate’s ruling.

In May 2023, Father moved to dismiss Mother’s request for rehearing because it did not comply with the new law.

The juvenile court judge found the amendment to § 37-1-107(d) should be applied retroactively and allowed Mother an extension of time to comply with the amended statute to avoid “an unjust result.”

Father took an interlocutory appeal, arguing the trial court erred in extending the time for filing the newly required request for rehearing.

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

Generally, statutes are presumed to operate prospectively. There is an exception, however, for remedial or procedural statutes. Such statutes apply retrospectively to causes of action arising before they became law and to all cases pending when the legislation takes effect unless the legislature indicates otherwise or immediate application would produce an unjust result.

Generally, statutes governing how to appeal or seek review are procedural in nature. Here, both parties agreed TCA § 37-1-107(d) is procedural.

However, even a procedural or remedial statute may not be applied retrospectively if it impairs a vested right. A “vested right” is one which it is proper for the state to protect and “of which an individual could not be deprived arbitrarily without injustice.”

In Doe v. Sundquist, the Tennessee Supreme Court adopted a multipart test to determine whether a vested right was impaired. In making this determination, Tennessee courts must consider the following as the “most important inquiries” in deciding whether a vested right is impaired, with no single factor being dispositive:

1. whether the public interest is advanced or restricted,
2. whether the retroactive provision gives effect to or defeats the bona fide intentions or reasonable expectations of affected people,
3. whether the statute surprises people who have long relied on a contrary state of the law, and
4. whether application of the new law results in the loss of a fundamental right.

Applying this test, the Court reversed the trial court and remanded the case for a de novo rehearing under the old statute:

In this case, Mother filed her request for rehearing in October 2021, under the prior de novo hearing version of the statute. She did not delineate any specific errors in the magistrate’s order but simply requested a hearing. 543 days later, the amendment to § 37-1-107(d) went into effect, the result of which was to eliminate Mother’s request for a de novo hearing. And if Father is correct, the amendment would also entirely prevent Mother from any rehearing because Mother failed to foresee an amendment to the juvenile magistrate statute that would eliminate that procedure over 500 days later.

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We conclude that the 2023 amendment to § 37-1-107(d) does not result in the loss of a fundamental right. While Mother certainly has a fundamental right to the care and custody of her child, she does not have a fundamental right to any particular procedure or remedy.

Here, there can be no dispute that applying the 2023 amendment defeats the reasonable expectations of Mother. When Mother participated in the October 2021 hearing, she reasonably anticipated that regardless of the outcome, she would be entitled to a de novo rehearing before the juvenile judge if she timely requested rehearing. Moreover, for over a year following her timely request for rehearing, both parties operated under the reasonable expectation that such a de novo rehearing would take place. It was only over 500 days later that the law changed to deprive Mother of the hearing that she reasonably anticipated.

The fact that the amendment took effect 528 days after Mother could have perfected her request for rehearing also clearly demonstrates the surprise in this case. Here, not only was the effective date of the statute well after Mother perfected her request for rehearing, the 2023 amendment to § 37-1-107(d) was not introduced until January 24, 2023. As such, even if Mother had anticipated the passing of the proposed law, the law was not even proposed until more than a year after the hearing before the magistrate and Mother’s request for rehearing.

Thus, while some factors certainly favor retroactive application of the amendment to § 37-1-107(d) in this case, other factors strongly support the conclusion that Mother’s vested right would be impaired by application of the amended procedure to this case. Certainly, we understand the Tennessee General Assembly’s purpose in altering the procedure in § 37-1-107(d). This case is illustrative of the problems created when juvenile matters are not resolved expeditiously. But Mother had no way to foresee the change in the law when she participated in the hearing before the magistrate or perfected her request for rehearing. And she labored for a significant period of time under the reasonable belief that the prior procedure would be applicable. We therefore conclude that, under the multifactor test in Sundquist, it would impair a vested right to apply the amended version of § 37-1-107(d) under the specific and unique facts of this case.

Moreover, Father’s own argument illustrates how unjust it would be to apply the newly enacted procedure to Mother’s request for rehearing. Father contends that after Mother failed to comply with the new procedural requirements of the amended statute within 10 days of the magistrate’s order, “a new hearing on the child flying issue was time-barred.” And Father asserts that the trial court lacked subject-matter jurisdiction to grant Mother additional time to comply with the procedural requirements after that 10-day window elapsed. Instead, Mother’s only avenue for relief is an appeal to this Court of the final judgment of the juvenile court. So then, Father asserts not only that Mother is not entitled to the de novo hearing that she reasonably anticipated when she requested rehearing, but that Mother is entitled to no rehearing on the magistrate’s decision because she failed to foresee and comply with a procedure that would not exist for another 543 days. Respectfully, such a Kafkaesque result is both unjust and absurd.

Simply put, Tennessee law should not be applied in a manner that forces litigants to consult a psychic in order to determine the proper procedure to follow…. While Father asserts that Mother still has a right to appeal to this Court of any final order is eventually entered in the juvenile court case, the Tennessee General Assembly has clearly provided that parties are entitled, one way or another, to the rehearing of matters decided by juvenile magistrates. Father’s interpretation totally deprives Mother of this right. As a result, while the 2023 amendment to § 37-1-107(d) is procedural, it nonetheless cannot be applied in this particular case because it impairs mother’s vested right [] and the result would be unjust.

The Court reversed the trial court and remanded the case for the de novo rehearing required by the old version of the statute.

Source: In re Henry W.H. (Tennessee Court of Appeals, Western Section, November 19, 2024).

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