Tamara Reece Milton v. Randall v. Harness, Jr. ( 2017 )

03/03/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on February 16, 2017
TAMARA REECE MILTON1 v. RANDALL V. HARNESS, JR.
Appeal from the Chancery Court for Loudon County
No. 12472 Frank V. Williams, III, Chancellor
No. E2017-00092-COA-R10-CV
This is an extraordinary appeal, filed pursuant to Rule 10 of the Tennessee Rules of
Appellate Procedure, seeking review of the Trial Court’s ex parte injunction temporarily
changing custody of the parties’ six-year-old child (“Child”), born out-of-wedlock,
pending the final adjudication of the Petition for Custody and Injunction (“Petition” or
“Petition for Custody”) filed by the Petitioner, Randall V. Harness, Jr. (“Father”), in
which he seeks to legitimate and obtain custody of Child. We conclude that an
extraordinary appeal is warranted, that both the ex parte injunction changing custody and
the Trial Court’s subsequent order continuing that injunction should be vacated, and that
custody of Child be restored to the Respondent, Tamara Reece Milton (“Mother”),
pending further action by the Trial Court.2
Tenn. R. App. P. 10 Extraordinary Appeal;
Judgment of the Chancery Court Vacated and Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.
SUSANO, JR., and THOMAS R. FRIERSON, II, JJ., joined.
Stephanie G. Crippen, Knoxville, Tennessee, for the appellant, Tamara Reece Milton.
1
For purposes of this opinion, we have adopted the spelling of “Reece” reflected on the application
filed in this Court, and not the incorrect spelling of “Reese” reflected in court documents below.
2
Because Mother=s Rule 10 application, together with Father’s answer thereto, fully set forth the
parties’ positions and material facts necessary for review, we suspend pursuant to Rule 2 of the Tennessee
Rules of Appellate Procedure application of Rules 10(d), 24, 25 and 29 of the Tennessee Rules of Appellate
Procedure with regard to all further procedure in this Court, and conclude that oral argument is unnecessary
pursuant to Rule 35(c) of the Tennessee Rules of Appellate Procedure. See State ex rel. Dean v. Nelson, 169
S.W.3d 648, 649 n. 1 (Tenn. Ct. App. 2004)(citing Hammock v. Sumner Co., No. 01A01-9710-CV-00600,
1997 WL 749461 (Tenn. Ct. App., filed Dec. 5, 1997)).
David L. Valone, Knoxville, Tennessee, for the appellee, Randall V. Harness, Jr.
OPINION
Mother and Father were never married. Child was born in October of 2010 in
Arizona. Mother listed Father on Child’s birth certificate. Shortly after Child’s birth,
Father was deployed to Afghanistan as a United States Marine from November of 2010
until March of 2011. Upon his return from deployment, Father was stationed at the
Marine Corps Base in Southern California known as Twentynine Palms. In April of 2011,
deoxyribonucleic acid (DNA) testing confirmed that Father is the biological father of
Child. In May of 2011, Father signed an Acknowledgement of Paternity with the Arizona
Department of Economic Security, as well as a sworn Marine’s Statement acknowledging
that he was Child’s father and directing that $300.00 per month be provided to Mother by
military allotment as support for Child. Father also applied for a Uniformed Services
Identification Card and DEERS3 enrollment for Child which allowed Child, as Father’s
dependent, to receive military benefits including health insurance. On that application,
Father certified that he was “providing or maintaining [a] household [for Child]” and
providing “over 50% support” for Child, as is required by the federal regulations defining
the circumstances under which an illegitimate dependent child of a service member may
obtain military dependent benefits. See 32 C.F.R. ' 199.3(b)(2)(ii)(E). For the next
seventeen months after his return from deployment, and while stationed in California,
Mother granted Father informal visitation with Child on a regular basis. Father would
travel to Arizona for this visitation, staying in hotels or with Mother or her grandparents.
In November of 2012, Father was discharged from the military and moved to
Arizona where he attended school and continued his informal relationship with Child.
In September of 2013, Father moved to Lenoir City, Tennessee. Despite the distance
between them, Mother and Father maintained their arrangement of Father having
informal visitation with Child, including Father traveling to Arizona and bringing Child
back to Tennessee for extended visitation. However, there was never an order entered
adjudicating Father to be Child’s legal father or determining the custodial or visitation
rights of the parties to Child. Child has lived with Mother since her birth.
In September of 2014, Mother moved with her sister and Child to Lenoir City,
Tennessee. Shortly after her arrival, Mother obtained employment with CSL Plasma
where she worked until October of 2016, when Mother and Child moved back to
3
“DEERS is the acronym for Defense Enrollment Eligibility Reporting System, which is a
computerized database maintained by the Department of Defense that maintains eligibility information for
TRICARE, the health care program for service members, retirees, and dependants.” Mitchell v. U.S., No.
3:12CV15/MCR/EMT, 2012 WL 3063999, * 1 (N.D. Fla. June 14, 2012).
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Arizona. Mother’s sister remained and is still a resident of Knoxville, Tennessee. Prior to
the move back to Arizona, Child had just started Kindergarten at Highland Park
Elementary School in Lenoir City. During the approximately two years that Mother and
Child lived in Tennessee, Mother allowed Father extensive informal visitation with
Child.
Two weeks after Mother and Child moved back to Arizona, Father filed his sworn
Petition seeking to legitimate and obtain custody of Child in the Chancery Court for
Loudon County, Tennessee. Father asserted in his Petition that the Trial Court had
jurisdiction to adjudicate the matter because Tennessee was Child’s Ahome state@
pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (AUCCJEA@). See
Tenn. Code Ann. ' 36-6-205(7). Father further alleged in his Petition that the
requirements for jurisdiction under the UCCJEA to make an initial custody determination
of a child absent from the state were present. See Tenn. Code Ann. ' 36-6-216(1)(a).
In his Petition, Father requested that the Trial Court issue an injunction upon the
filing of the Petition “requiring the transfer of custody of the parties’ minor child to
[Father],” or, in the alternative, requiring Mother to “immediately return the minor child
to Loudon County, Tennessee, pending the full adjudication of this matter.” Father
alleged in his Petition that “he has concerns for the well-being of the parties’ minor child
due to the instability of [Mother], in that there have been times when she and the minor
child were living with [Mother’s] grandmother, and because [Mother] was not willing to
abide by the grandmother’s reasonable ‘house rules,’ the [Mother] would become
frustrated and needlessly leave her grandmother’s home with the child and move to a
potentially less appropriate, stable and safe environmentCas she has done repeatedly in
both Tennessee and Arizona since [Child] was born.” Father also alleged in his Petition
that Mother’s “numerous moves with the parties’ minor child were often due to domestic
disagreements between [Mother] and the head of any of the given households, often
without a plan of where to go next, showing little to no regard for the best interests and
well-being of the parties’ minor child.” However, Father also alleged in his Petition that
Mother “had a good, steady job for which she was paid well” while living in Tennessee.
While Father alleged in his Petition that Mother had “sporadically moved between Lenoir
City and Knoxville” during the time she lived in Tennessee, and that “she lived with
either her sister, friends and/or co-workers” during that time, Father also alleged in his
petition that Mother had only had two different addresses in Lenoir City during this time
at which she had received mail and registered her vehicle.
In addition to his sworn allegations, Father accompanied his Petition with an
affidavit in which he reaffirmed that Mother had worked at CSL Plasma for the entire
time she had lived in Tennessee, but also asserted that he had “concern about her
stability” because “she has moved numerous and frequent times and has resided with our
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daughter at six different residences in the past two years.” Yet Father also stated in his
affidavit that, during the time she had attended Highland Park Elementary School, Child
had done “very well in school.” Father’s affidavit also stated, without elaboration, that he
felt Child “may suffer irreparable harm” if not returned to Tennessee and that it was in
Child’s “best interest” for him to be “granted primary care, custody and control of [Child]
pending the resolution of the issue of custody.” Father also attached to his Petition the
Acknowledgement of Paternity he had signed with the Arizona Department of Economic
Security, as well as the sworn Marine’s Statement and application for Uniformed
Services Identification Card and DEERS enrollment for Child discussed above.
On the day Father filed the Petition, the Trial Court entered its initial ex parte
injunction directing Mother to “immediately return the minor child to Loudon County,
Tennessee, pending the full adjudication of this matter.” No findings of fact or
conclusions of law were stated in this order, and none could have been made of record as
the order was entered ex parte immediately upon the filing of the Petition. Mother was
served with the ex parte injunction, along with the Petition, five days after it was entered.
Shortly thereafter, Mother filed a motion to set aside the ex parte injunction on grounds
that it had been invalidly issued in that she was the sole legal and physical custodial
parent of Child pursuant to Tennessee Code Annotated section 36-2-303, and was not
required to provide Father with prior notice of her intent to move to Arizona pursuant to
Tennessee Code Annotated section 36-6-108(a).
Approximately two weeks after Mother filed her motion to set aside the ex parte
injunction, and before the Trial Court could hear her motion to set aside, Father filed a
new petition seeking to have Mother held in contempt for not complying with the ex
parte injunction, and also seeking the immediate issuance of another injunction
transferring custody of Child to Father. Father accompanied this petition with an affidavit
in which he attested that Mother had failed to comply with the ex parte injunction
requiring her to return Child to Tennessee.
Four days after the filing of Father’s contempt petition, and still without having
heard Mother’s pending motion to set aside the initial ex parte injunction, the Trial Court
entered a second ex parte injunction directing Mother to “immediately transfer of [sic]
custody of the parties’ minor child” to Father “for further adjudication by this Court.”
No findings of fact or conclusions of law were stated in this order, and none could have
been made of record as the order again was entered ex parte and without a hearing.
Within days of the issuance of this second ex parte injunction, Father traveled to
Mother’s home in Arizona with the injunction and, with the assistance of local law
enforcement, removed Child from Mother’s custody, returning to Tennessee with Child
the next day. The day after Child’s removal from Mother’s home, Mother filed an
emergency motion to set aside both the initial ex parte injunction, and the second ex parte
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injunction which transferred custody of Child to Father. At the time Mother filed this
emergency motion to set aside, she had not yet been formally served with the second ex
parte injunction. Her knowledge of it came from Father’s execution of the order at her
home the day before.
Almost two weeks after the removal of Child from Mother’s care, the Trial Court
held a telephonic hearing on Mother’s emergency motion to set aside both ex parte
injunctions. After hearing argument from counsel, but no evidence, the Trial Court
announced that the sworn allegations in Father’s Petition for Custody, and accompanying
affidavit, were sufficient to support issuance of both the initial and subsequent ex parte
injunctions. Five days later, Mother filed her application for an extraordinary appeal with
this Court, and we immediately directed the filing of an answer from Father pursuant to
Rule 10(d) of the Tennessee Rules of Appellate Procedure.
On February 16, 2017, the Trial Court entered a written order denying Mother’s
emergency motion to set aside both ex parte injunctions. In support of this order, the
Trial Court concluded that Tennessee was Child’s “home state” and that Child “should
have remained in Tennessee.” The Trial Court further found that “it was not appropriate
for [Mother] to pack up and leave the State of Tennessee with the minor child,” that
Mother was ordered to return Child to Tennessee, and that Mother did not adhere to that
order. The Trial Court concluded that “it was justified in issuing the injunction for the
child to stay in Tennessee in the father’s care.” On that basis, and because “the child is
now in Tennessee” and “there are no safety issues,” the Trial Court determined that
Mother’s emergency motion to set aside should be denied.
Upon consideration of the arguments made in Father’s answer to Mother’s
application, we conclude that an extraordinary appeal is warranted because “the lower
court has so far departed from the accepted and usual course of judicial proceedings as to
require immediate review.” Tenn. R. App. P. 10(a). We conclude that immediate relief
should be granted to Mother and that Child be returned to her care and custody pending
further action by the Trial Court on Father’s Petition for Custody.
ANALYSIS
“An appellate court should grant a Rule 10 extraordinary appeal only when the
challenged ruling represents a fundamental illegality, fails to proceed according to the
essential requirements of the law, is tantamount to the denial of a party’s day in court, is
without legal authority, is a plain and palpable abuse of discretion, or results in either party
losing a right or interest that may never be recaptured.” Gilbert v. Wessels, 458 S.W.3d
895, 898 (Tenn. 2014) (citing State v. McKim, 215 S.W.3d 781, 791 (Tenn. 2007), and
State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980)). “Rule 10 appeals are reserved
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only for extraordinary departures from the accepted and usual course of judicial
proceedings.” Id. (emphasis in original). As such, “[i]t is important for appellate courts to
exercise restraint in granting Rule 10 appeals,” and only grant such review if “the trial
court’s alleged error qualifies for immediate review under the specific criteria indicated by
Rule 10.” Id. at 898-99. With due respect to the Trial Court, we conclude that issuance of
the ex parte injunctions in this case were not in accord with “the essential requirements of
law,” denied Mother her “day in court,” were “without legal authority,” and resulted in a
loss to Mother of her unqualified right to exclusive custody of Child during the pendency
of the proceedings below, the purpose of which are to establish Father’s legal rights as a
parent to Child.
We agree with Father that a trial court is afforded broad discretion in issuing
temporary injunctions in domestic relations cases. See Tenn. R. Civ. P. 65.07; Wilson v.
Wilson, 987 S.W.2d 555, 565 (Tenn. Ct. App. 1998). However, such discretion is not
unfettered and completely detached from the basic requirements for the issuance of
temporary injunctions set forth in Rule 65 of the Tennessee Rules of Civil Procedure. See
Hogue v. Hogue, 147 S.W.3d 245, 250-52 (Tenn. Ct. App. 2004); see also Marlow v.
Parkinson, 236 S.W.3d 744, 752 (Tenn. Ct. App. 2007). “More importantly, rules of
procedure may not contravene constitutional constraints.” Hogue, 147 S.W.3d at 252,
quoted in Marlow, 236 S.W.3d at 752. In other words, Father’s argument “that trial judges
in domestic relations cases have broad discretion to fashion orders necessary to protect the
welfare of children who may be harmed by the conduct of their parents” is overstated. Id.
at 252.
In order to obtain a temporary injunction, Rule 65 requires that it be clearly shown
“by verified complaint, affidavit or other evidence that the movant’s rights are being or will
be violated by an adverse party and the movant will suffer immediate and irreparable
injury, loss or damage pending a final judgment in the action, or that the acts or omissions
of the adverse party will tend to render such final judgment ineffectual.” Tenn. R. Civ. P.
65.04(2). Rule 65 also requires a trial court to “set forth findings of fact and conclusions of
law” when “granting, denying or modifying a temporary injunction.” Tenn. R. Civ. P.
65.04(6). Thus, despite Father’s arguments to the contrary, the provisions of Rule 65.07 do
not permit entirely “dispensing with the requirement that the trial court enter reasons or
findings of record when extending a TRO or when granting a temporary injunction.” Smith
v. Smith, No. 01A01-9511-CH-00536, 1996 WL 526921, * 3 (Tenn. Ct. App., filed Sept.
18, 1996). We recognize that, after these appellate proceedings were initiated, the Trial
Court finally made findings of fact in support of the ex parte injunctions its February 16,
2017 order denying Mother’s emergency motion to set aside both ex parte injunctions.
However, these findings of fact do not support the Trial Court’s legal conclusion that
Father’s sworn Petition for Custody, and his accompanying affidavit, demonstrated any
violation of his “rights” by Mother as a result of her move with Child to Arizona, much less
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that Father, or Child for that matter, would suffer immediate and irreparable harm without
issuance of the ex parte injunction temporarily changing custody.
At the time Father filed his Petition for Custody and Injunction in the proceedings
below, Mother was the sole legal and physical custodian of Child pursuant to Tennessee
Code Annotated section 36-2-303, which states: “Absent an order of custody to the
contrary, custody of a child born out of wedlock is with the mother.” The fact that Father
previously had signed an Acknowledgment of Paternity with the Arizona Department of
Economic Security did not vest in him any custodial or visitation rights as a legal father. As
this Court recently explained,
A biological father who has signed an “acknowledgement of paternity” is
declared the legal father with the obligation to pay support and the right to be
given notice in the event of litigation or attempted termination of parental
rights/adoption. The acknowledgment does not vest any custody rights or
visitation rights upon the legal father.
In Re Hailey S., No. M2016-00387-COA-R3-JV, 2016 WL 7048840, * 9 (Tenn. Ct. App.,
filed Dec. 5, 2016) (emphasis added). Father’s application for a Uniformed Services
Identification Card and DEERS enrollment for Child also did not create in Father or
evidence that Father had any custodial or visitation rights as to Child. The federal
regulations defining a dependent child of a service member for these purposes includes
illegitimate children whose paternity has not yet been determined judicially. See 32
C.F.R. ' 199.3(b)(2)(ii)(E). Mother also had no obligation to advise or notify Father of
her intent to move with Child from Tennessee prior to doing so. See Tenn. Code Ann. '
36-6-108(a) (providing that notice provisions of parental relocation statute apply only
“[a]fter custody or co-parenting has been established by the entry of a permanent
parenting plan or final order”); see also Dayhoff v. Cathey, No. W2016-00377-COA-
R3-JV, 2016 WL 4487813, * 5 (Tenn. Ct. App., filed Aug. 25, 2016) (“This Court has
repeatedly held that the parental relocation statute is inapplicable when the trial court is
making an initial custody decision or parenting arrangement for the child even if a parent
is relocating.”) (collecting cases).
We are sympathetic to the fact that Father may have mistakenly believed that
Mother’s move to Arizona with Child, without prior notice, somehow violated his “rights”
as Child’s father. However, given the fact that there has never been an initial custody order
or parenting plan establishing the custodial rights of Father to Child, any “rights” Father
may have as Child’s biological father, or even as Child’s putative biological father, did not
include the “right” to notice of Mother’s intent to move to Arizona with Child. See In re
Bernard T., 319 S.W.3d 586, 598-99 (Tenn. 2010) (discussing the differences between a
biological father, a putative biological father, and a legal father). “Being a child’s
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biological father is not sufficient, by itself, to qualify a man as a child’s legal parent or as a
child’s putative biological father.” Id. at 598. In fact, establishing Father’s “rights” as
Child’s legal father is the point of the proceedings below. See Tenn. Code Ann. '
36-2-311(a) (“Upon establishing parentage, the court shall make an order declaring the
father of the child.”). Until such time as the Trial Court enters an order establishing Father
to be Child’s legal father, there exists no legal parent-child relationship between Father and
Child. See Tenn. Op. Att'y Gen. No. 90-68 (June 13, 1990). Even where, as here, a mother
has listed a putative father on a child’s birth certificate “or informally by other acts, words,
or cohabitation, acknowledged that [a man] was the child’s natural father, the putative
father would still not have the legal status of a parent under Tennessee law.” Id. As such, it
is unclear upon what basis the Trial Court concluded that it was “not appropriate for
[Mother] to pack up and leave the State of Tennessee with the minor child,” or how this
action justified the issuance of either ex parte injunction.
Our conclusion that Father’s sworn Petition, and accompanying affidavit, failed to
demonstrate any violation of his “rights” with regard to Child is enough to end our
inquiry. Nevertheless, we note that the Trial Court’s February 16, 2017 order made no
findings that irreparable harm would occur if the ex parte injunction temporarily
changing custody of Child from Mother to Father were not continued. When faced in the
past with a similar deficiency involving the continuation of a temporary injunction
changing custody in a modification proceeding, which injunction was issued following a
parental move to an adjoining county within Tennessee, this Court determined that the
trial court erred in continuing the injunction and restored the parties to the custodial
arrangement that existed prior to issuance of the injunction. See Price v. Price, No.
E1999-00102-COA-R10-CV, 2000 WL 704596, * 8 (Tenn. Ct. App., filed May 31,
2000).
CONCLUSION
Based upon the foregoing, we vacate both of the Trial Court’s ex parte injunctions
and the order denying Mother’s emergency motion to set aside both ex parte injunctions.
We hereby reinstate the custodial arrangement that existed prior to issuance of the
injunctions, by virtue of the statutory law of Tennessee, and direct that custody of Child be
restored to Mother pending further action of the Trial Court. Costs on appeal are taxed to
Father, for which execution may issue.
_________________________________
JOHN W. MCCLARTY, JUDGE
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