In Re Cannon H.
W2015-01947-COA-R3-JV
| Tenn. Ct. App. | Oct 5, 2016Background
- Unmarried parents (Mother primary residential parent since 2012) share custody of Cannon (b. 2010); Father is an active duty National Guard and FedEx pilot with irregular travel obligations; Mother is a nurse anesthetist with a variable shift schedule.
- Parents originally agreed to a flexible, mediated schedule requiring schedule exchanges; in Dec. 2012 that agreement was entered as a juvenile court order.
- Father petitioned in Apr. 2014 to be primary residential parent after the birth of a second child (Piper) and alleged Mother’s instability; magistrate adopted a more structured schedule (Father first, third, fifth weekends) and awarded Mother $3,500 in attorney’s fees.
- Father requested a de novo rehearing before the juvenile court judge; at rehearing the judge adopted a similar structured schedule but shifted Father’s weekends to second, fourth, and fifth weekends and ordered $3,500 in attorney’s fees to Mother.
- Father appealed, challenging the parenting schedule, raising an equal protection challenge to Tenn. Code Ann. § 36-6-106(a), and contesting the attorney’s fees award; Mother sought appellate fees.
- The Court of Appeals affirmed the parenting schedule (no abuse of discretion), found the constitutional challenge waived, vacated the attorney’s fees award for lack of an adequate evidentiary hearing, and remanded for determination of amount and reasonableness; appellate fee request denied.
Issues
| Issue | Father's Argument | Mother's Argument | Held |
|---|---|---|---|
| Whether the juvenile court’s parenting schedule denied Father "maximum participation" | Schedule did not accommodate Father’s Guard/FedEx conflicts and therefore limited his participation; proposed flexible alternatives | Structured schedule minimizes parental conflict and better serves child given parents’ vitriolic relationship | Affirmed: trial court’s structured schedule was within its discretion and consistent with child’s best interests and §36-6-106(a) limits on flexibility |
| Whether §36-6-106(a) violates equal protection as applied | Statutory factors favor Mother because unmarried mother has initial custody at birth, disadvantaging fathers | Issue not raised below; statute applied properly | Waived: not raised/decided below and Office of AG not notified; court declines to reach merits |
| Whether juvenile court erred in awarding Mother $3,500 in attorney’s fees without proof | No adequate evidentiary hearing at de novo rehearing; Father lacked opportunity to cross-examine or contest fees | Fees awarded as reasonable by trial court | Vacated and remanded: trial court must hold hearing to determine amount and reasonableness, considering both magistrate and rehearing proceedings |
| Whether Mother should receive appellate attorney’s fees | N/A | Requests fees under §36-5-103(c) | Denied: discretionary; Mother prevailed but court not shown inability to pay or bad-faith appeal; appeal not frivolous |
Key Cases Cited
- Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013) (abuse-of-discretion standard and deference to trial judges on parenting-plan details)
- Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn. 2011) (appellate review recognizes trial court’s choice among acceptable alternatives)
- Sherrod v. Wix, 849 S.W.2d 780 (Tenn. Ct. App. 1992) (trial court may sometimes fix attorney’s fees without a fully developed record)
- Wilson Mgmt. Co. v. Star Distrib. Co., 745 S.W.2d 870 (Tenn. 1988) (circumstances allowing judge to set fees without prima facie proof)
- Kahn v. Kahn, 756 S.W.2d 685 (Tenn. 1988) (party to be charged must have opportunity to cross-examine if judge fixes fee without proof)
- Pippin v. Pippin, 277 S.W.3d 398 (Tenn. Ct. App. 2008) (appellate authority to award fees in child custody/support cases)
- Luke v. Luke, 651 S.W.2d 219 (Tenn. 1983) (welfare of the child is the paramount consideration)