In Re Piper H.
W2015-01943-COA-R3-JV
| Tenn. Ct. App. | Oct 5, 2016Background
- Parents (unmarried) dispute residential parenting schedule for daughter Piper (b. 2013); Mother primary caregiver; Father is a National Guard and FedEx pilot with varying travel obligations.
- Magistrate originally ordered a structured schedule: Father has Thursday–Sunday first, third, and fifth weekends; later confirmed; magistrate awarded Mother $3,500 in attorney’s fees.
- Father requested a rehearing before the juvenile court judge; judge entered a similar structured schedule shifting Father to second, fourth, and fifth weekends (Thursday–Sunday) and ordered Father to pay $3,500 of Mother’s fees.
- Father appealed, challenging (1) the parenting schedule as not maximizing his participation, (2) constitutionality of Tenn. Code Ann. §36‑6‑106(a), and (3) the award of Mother’s attorney’s fees. Mother sought appellate fees.
- Record shows high parental conflict; two psychologists recommended a structured, low‑communication schedule. Trial court considered the 14 statutory best‑interest factors and found factors favoring Mother. Court emphasized child’s best interests over maximizing parental time when conflict undermines cooperation.
Issues
| Issue | Father’s Argument | Mother’s Argument | Held |
|---|---|---|---|
| Parenting schedule — whether court erred by not maximizing Father’s participation | The court should adopt a flexible or different schedule (monthly selectable days, alternating weeks, rescheduling for Guard duty, or align weekends with his other child) to allow Father maximum participation | Structured schedule is needed; flexible plans failed historically and caused planning problems and conflict | Affirmed: court acted within discretion to adopt a structured, low‑communication schedule in child’s best interests given high parental conflict |
| Equal protection challenge to Tenn. Code Ann. §36‑6‑106(a) | Statutory factors inherently favor Mother because custody of children born out of wedlock vests with mother absent order | Issue not raised below; no response on merits | Waived: not raised in trial court and procedural requirements (notice to AG) were not met |
| Trial court’s award of Mother’s attorney’s fees to be paid by Father | Fee award should be set or supported by evidence of reasonableness; Father lacked chance to contest at de novo rehearing | Magistrate already awarded fees; fee amount reasonable | Vacated: remanded for evidentiary hearing to determine amount and reasonableness because the juvenile court’s de novo rehearing did not independently develop the fee record |
| Mother’s request for appellate attorney’s fees under §36‑5‑103(c) and frivolous appeal statute | N/A (Mother sought fees) | Mother requested fees for defending on appeal; alternatively fees for frivolous appeal under §27‑1‑122 | Denied: appellate fees denied (each party bears own costs); appeal not frivolous so §27‑1‑122 damages denied |
Key Cases Cited
- Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013) (abuse‑of‑discretion standard for parenting plans; trial court better positioned to make credibility calls)
- Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn. 2011) (appellate deference reflects choice among acceptable alternatives)
- Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002) (standard of review for factual findings in family cases)
- Sherrod v. Wix, 849 S.W.2d 780 (Tenn. Ct. App. 1992) (trial court may sometimes fix attorney’s fees without fully developed record)
- Wilson Mgmt. Co. v. Star Distrib. Co., 745 S.W.2d 870 (Tenn. 1988) (trial court discretion to set fees without prima facie proof in some circumstances)
- Kahn v. Kahn, 756 S.W.2d 685 (Tenn. 1988) (requiring opportunity to cross‑examine if court fixes fee without proof)
- Luke v. Luke, 651 S.W.2d 219 (Tenn. 1983) (child’s welfare is paramount in custody determinations)