Tamara Reece Milton v. Randall v. Harness, Jr.
E2017-00092-COA-R10-CV
| Tenn. Ct. App. | Mar 3, 2017Background
- Child born out of wedlock in 2010; Mother had sole physical custody under Tenn. Code Ann. § 36-2-303; Father listed on birth certificate and completed an Acknowledgement of Paternity and military dependent enrollment but had never sought or obtained a judicial adjudication of parentage or custody prior to this case.
- Mother and Child lived in Tennessee from Sept. 2014 to Oct. 2016; Mother then moved with Child to Arizona; Father filed a Petition to legitimate and obtain custody in Loudon County, Tennessee two weeks after the move.
- Father requested an ex parte injunction ordering Child’s immediate return to Tennessee; the trial court entered two ex parte injunctions (the second directing transfer of custody to Father) without a hearing or factual findings and Father removed Child from Mother’s Arizona home with local law enforcement.
- Mother moved to set aside the injunctions; the trial court denied the motion after a telephonic hearing with argument only, concluding Tennessee was Child’s home state and that the injunctions were justified.
- Mother filed an extraordinary (Rule 10) appeal; the Court of Appeals found the ex parte custody-transfer injunctions unlawful and vacated both injunctions and the order denying Mother’s motion, restoring custody to Mother pending further proceedings.
Issues
| Issue | Plaintiff's Argument (Harness) | Defendant's Argument (Milton) | Held |
|---|---|---|---|
| Whether ex parte injunction changing custody was properly issued | Father argued his verified petition and affidavit showed his rights were being violated by Mother’s move and that irreparable harm to him/child would result, justifying ex parte relief | Mother argued she was sole legal custodian, Father had no custodial rights absent a judicial order, and she owed no relocation notice | Court held ex parte injunctions were improper: Father had no established custodial rights and petition/affidavit did not show violation of rights or irreparable harm |
| Applicability of parental-relocation notice statute | Father implied Mother’s move violated his rights and justified injunction | Mother argued Tenn. Code § 36-6-108 notice requirement applies only after custody or co-parenting established by order | Court agreed Mother owed no notice because no custody order existed; relocation statute not applicable |
| Procedural sufficiency of ex parte orders under Tenn. R. Civ. P. 65 | Father relied on trial-court discretion in domestic cases to justify TROs/temporary injunctions | Mother argued Rule 65 requires verified proof of imminent irreparable harm and findings of fact/conclusions of law when granting temporary injunctions; ex parte orders lacked findings and were entered without a hearing or evidence | Court held Rule 65 requirements were not satisfied: no adequate verified showing of irreparable harm and initial orders lacked required findings; later findings could not cure ex parte deficiency |
| Appropriateness of extraordinary (Rule 10) review | Father contended ordinary appellate process sufficed | Mother requested immediate review because custody was already changed and rights irreparably affected | Court granted Rule 10 relief, finding a fundamental departure from required procedure and restored custody to Mother pending further proceedings |
Key Cases Cited
- Gilbert v. Wessels, 458 S.W.3d 895 (Tenn. 2014) (standards for granting Rule 10 extraordinary appeal)
- State v. McKim, 215 S.W.3d 781 (Tenn. 2007) (grounds for extraordinary appellate review)
- State v. Willoughby, 594 S.W.2d 388 (Tenn. 1980) (context on appellate intervention for departures from procedure)
- Wilson v. Wilson, 987 S.W.2d 555 (Tenn. Ct. App. 1998) (trial-court discretion in domestic-relations temporary orders)
- Hogue v. Hogue, 147 S.W.3d 245 (Tenn. Ct. App. 2004) (limits on procedural compliance for temporary injunctions)
- Marlow v. Parkinson, 236 S.W.3d 744 (Tenn. Ct. App. 2007) (procedural and constitutional constraints on domestic-relations injunctions)
- In re Bernard T., 319 S.W.3d 586 (Tenn. 2010) (distinguishing biological, putative, and legal father status)