IN RE HENRY W.H.
No. W2023-01234-COA-R9-JV
IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
November 19, 2024
September 11, 2024 Session; Appeal from the Juvenile Court for Shelby County, No. Z9507, W. Ray Glasgow, Special Judge
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B. GOLDIN, and CARMA DENNIS MCGEE, JJ., joined.
Joseph W. Smith, Germantown, Tennessee, for the appellant, Charles H.H.
Lee Ann Pafford Dobson, Collierville, Tennessee; Zachary M. Moore and Madeline L. Nolan, Memphis, Tennessee, for the appellee, Amy C.W.
OPINION
I.
Charles H.H. (“Father“) and Amy C.W. (“Mother“) are the unmarried parents of
The hearing on Father‘s petition was not heard until over three years later, on October 20, 2021, before a juvenile magistrate. At the hearing, the magistrate orally ruled that it would modify the parties’ parenting plan. A written order granting Father‘s petition was entered on November 12, 2021. Therein, the magistrate noted that this case involved “multiple contempt petitions, petitions and amended petition and motions for relief and petitions to modify child support and motions for continuances; mediation attempts, two agreed parenting plans; psychological counseling; all consuming over a thousand pages of documents, motions, memorandum, exhibits and petitions, not to [mention] hours of court time.” Based on the proof presented, the magistrate found that a material change in circumstances had occurred in that the parents were unable to jointly parent the child. In addition to other changes to the parties’ parenting plan, the magistrate granted Father‘s request, such that the child would be permitted to fly to parenting time with each parent unaccompanied in any non-stop flight until the age of thirteen; after thirteen, the child would be allowed to fly in flights involving multiple stops unaccompanied.
On October 29, 2021, before the magistrate‘s written order was even entered, Mother filed a request for rehearing by the juvenile court judge pursuant to
But Mother‘s request for rehearing would not be resolved anytime soon. Eventually, Mother attempted to prevent enforcement of the magistrate‘s order, citing the child‘s alleged fear of flying. On April 12, 2023, the trial court issued an injunction preventing the child from flying for any of Father‘s parenting time pending further orders of the court. The child was permitted to visit Father for summer vacation by flying, but only if he was accompanied by Father. The trial court set the rehearing on Father‘s petition for June 5, 2023.
On April 25, 2023, however, an amendment to
The trial court ultimately concluded that the amendment to
Father thereafter timely requested permission from the trial court to seek an interlocutory appeal to this Court. Mother also requested that the juvenile court proceedings be stayed pending the resolution of the interlocutory appeal. The trial court granted both motions by order of August 22, 2023.3 The trial court ruled that the following issues would be presented to this Court for review:
- Does the language of
Tenn. Code Ann. § 37-1-107 as amended require it to be applied retrospectively to requests for rehearings filed prior to April 25, 2023?
If the language ofTenn. Code Ann. § 37-1-107 as amended is to be applied retrospectively, is there any retroactive application of the statute to orders entered after a request for rehearing has been filed and before April 25, 2023? - Does retrospective application of the statute and dismissal of a rehearing deny the aggrieved party an opportunity to file a Request for Review?
If a Request for Review is available to a party who filed a request for rehearing prior to April 25, 2023, does the trial court have the authority to determine the date by which the Request for Review must be filed?
We subsequently granted Father‘s application for an interlocutory appeal on the issues certified by the trial court.4
II.
In this case, the trial court ruled that while an amendment to
The first question we must answer, therefore, is whether the trial court was correct to apply the amended version of
At the time that Mother requested rehearing before the juvenile judge,
On April 25, 2023, however, an amendment went into effect that significantly altered the rehearing procedure in juvenile court. Under the amended statute, a party seeking rehearing is still required to request rehearing within ten days of the magistrate‘s order, but the request “must include written exceptions to the magistrate‘s findings, conclusions, or recommendations, and specify the findings to which the party objects, the grounds for the objection, and the party‘s proposed findings, conclusions, or recommendations.”
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
Generally, statutes are presumed to operate prospectively. Kee v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn. 1993). An exception exists, however, “for statutes which are remedial or procedural in nature.” Id. Remedial or procedural “statutes apply retrospectively, not only to causes of action arising before such acts become law, but also to all suits pending when the legislation takes effect, unless the legislature indicates a contrary intention or immediate application would produce an unjust result.” Id. (citing Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn. 1976)).
In general, statutes governing how to appeal or seek review are procedural in nature. See State Dep‘t of Hum. Servs. v. Defriece, 937 S.W.2d 954, 958 (Tenn. Ct. App. 1996) (quoting Nat‘l Life & Accident Ins. Co. v. Atwood, 194 S.W.2d 350, 353 (Tenn. Ct. App. 1946) (“As applied to procedural changes governing the right of appeal the rule is that, where due provision has been made for the preservation of essential rights, the procedure for review or the extent of review are so far within the power of the legislature as to preclude the raising of questions of due process with respect to the method or procedure for review, the parties entitled to review, or the character of review in the appellate court.“)). The parties to this appeal do not dispute that
But simply concluding that a statute is procedural does not end our inquiry:
Finding that the amendment in question is procedural, however, does not automatically permit its retroactive application. Even a procedural enactment may not be applied retroactively in the following circumstances: where the legislature has manifested a contrary intention; where application of the new law would impair a vested right or contractual obligation; or where immediate application of the statute would produce an unjust result.
Id. at 958. In other words, “even a procedural or remedial statute may not be applied retrospectively if it impairs a vested right or contractual obligation in violation of
“A ‘vested right,’ although difficult to define with precision, is one ‘which it is proper for the state to recognize and protect and of which [an] individual could not be deprived arbitrarily without injustice.‘” Doe v. Sundquist, 2 S.W.3d 919, 923 (Tenn. 1999) (quoting Morris, 572 S.W.2d at 905). Father asserts that no vested right was impaired in this case, citing State Department of Human Services v. Defriece. In Defriece, 937 S.W.2d at 956, three hearings were held on a petition to terminate a mother‘s parental rights. After the first hearing, an amendment to
On appeal to this Court, the mother asserted that she was entitled to a de novo appeal in circuit court under the prior version of the statute. Id. at 957. We concluded that the amendment to
Applying the amended version of
Tenn. Code Ann. § 37-1-159(a) to this case did not curtail the parents’ appellate rights nor did it come at such an advanced stage of the proceeding that it undermined their substantive rights. The parents had ample notice of the procedural changes and of the increased importance of the juvenile proceeding. Since the amendment left intact the parents’ right to appeal to this court, it did not unconstitutionally hinder their ability to present their case in the juvenile court or their ability to seek appellate review of the juvenile court‘s decision.
The Defriece court further held that applying the amended statute would not produce an unjust result, despite the mother‘s argument that she was unable to adequately preserve the record in preparation for an appeal to this Court rather than a de novo appeal. 937 S.W.2d at 959. We concluded that the mother failed to actually present evidence of
Respectfully, the procedural history of this case and the current state of the law on this issue lead us to reach the opposite conclusion here. In Defriece, the amended statute went into effect prior to the final two hearings on the petition to terminate parental rights. In In re S.M., the amended statute went into effect even earlier, over nine months prior to the juvenile court hearing at issue. As such, in both of those cases, the appellants “had ample notice of the procedural changes” at a time when they could alter their conduct to take the changes into account. In re S.M., 1996 WL 140410, at *5. The same is simply not true here, as the amendment to
The state of the law on this issue has also changed since the decisions in Defriece and In re S.M. Specifically, in Doe v. Sundquist, the Tennessee Supreme Court adopted a multi-part test to determine whether a vested right was impaired. 2 S.W.3d at 924. Under this test, Tennessee courts consider the following as the “most important inquiries” in determining whether a vested right is impaired, with no single factor being dispositive: “(1) whether the public interest is advanced or retarded, (2) whether the retroactive provision gives effect to or defeats the bona fide intentions or reasonable expectations of affected persons, and (3) whether the statute surprises persons who have long relied on a contrary state of the law.” Id. (quoting Ficarra v. Dep‘t of Regul. Agencies, 849 P.2d 6, 16 (Colo. 1993)).6 The Tennessee Supreme Court has further stated that “[a]nother clearly important factor is whether application of the new law results in the loss of a fundamental right.” In re D.A.H., 142 S.W.3d 274.
Father asserts in this case that the public interest is advanced by the amendment to
We further conclude that the 2023 amendment to
The remaining two factors, however, strongly favor not applying the 2023 amendment in this case. See Sundquist, 2 S.W.3d at 924 (noting that these two factors “are obviously related to some degree“). Here, there can be no dispute that applying the 2023 amendment defeats the reasonable expectations of Mother. Here, 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 five hundred days later that the law changed to deprive Mother of the hearing that she reasonably anticipated.
The fact that the amendment took effect five hundred twenty-eight 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
Thus, while some factors certainly favor retroactive application of the amendment to
Moreover, Father‘s own argument illustrates how unjust it would be to apply the newly enacted procedure to Mother‘s request for rehearing. Defriece, 937 S.W.2d at 958. As we perceive it, Father contends that after Mother failed to comply with the new procedural requirements of the amended statute within ten 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 ten-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 five hundred forty-three days. Respectfully, such a Kafkaesque result is both unjust and absurd. Cf. Webster‘s New World College Dictionary 792 (5th ed. 2014) (defining Kafkaesque as “characteristic of, or like the writings of Kafka; specif[ically], surreal, nightmarish, confusing complex, etc.“).
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. As our high court explained, parties “cannot be expected to anticipate and will not be charged with notice that the legislative branch of government will attempt to interfere in such proceedings and effect a dismissal thereof.” Morris, 572 S.W.2d at 907. While Father asserts that Mother still has a right to appeal to this Court of any final order 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
III.
The judgment of the Shelby County Juvenile Court is reversed, and this matter is remanded to the trial court for further proceedings consistent with this Opinion. Costs of this appeal are taxed to Appellant Charles H.H., for which execution may issue if necessary.
s/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
or this Court, including that it was error for the juvenile court to enter the injunction against the magistrate‘s ruling allowing the child to fly unaccompanied, given the retroactivity of the amended statute, and a request for attorney‘s fees incurred on appeal as the prevailing party. Generally, “[w]hen dealing with an interlocutory appeal, the Court can and will deal only with those matters clearly embraced within the question certified to it.” Tenn. Dep‘t of Mental Health & Mental Retardation v. Hughes, 531 S.W.2d 299, 300 (Tenn. 1975). In any event, our decision herein pretermits Father‘s argument that the trial court erred in granting Mother the temporary injunction. Moreover, Father‘s request for attorney‘s fees is denied because he did not prevail in this appeal.