Brooks v. Carter

• Decision Date: 24 May 1999
• Citation: 993 S.W.2d 603
• Parties: Todd Frederick BROOKS, Plaintiff/Appellant, v. Linda Faye CARTER, Defendant/Appellee.
• Court: Tennessee Supreme Court

Page 603

993 S.W.2d 603

Todd Frederick BROOKS, Plaintiff/Appellant, v. Linda Faye CARTER, Defendant/Appellee.

Supreme Court of Tennessee,

at Jackson.

May 24, 1999.

The Hardison Law Firm, Robert L.J. Spence, Jr., Memphis, for Appellant.

Rita L. Stotts, Viola E. Johnson, Memphis, for Appellee.

OPINION

DROWOTA, J.

In this child custody case, we granted the application for extraordinary appeal to consider whether the Court of Appeals erred by ordering that mandate issue before the time period set forth by Tenn. R.App. P. 42 had expired.

As part of a final divorce decree, the trial court awarded primary custody of the parties' three minor children to the father. On February 2, 1999, the Court of Appeals reversed this aspect of the trial court's order and remanded the case to the trial court to enter an order designating the mother as the primary custodian. The trial court entered an order on February 4, 1999, designating the mother as primary custodian, which order was to take effect immediately. On February 9, 1999, however, the trial court vacated the February 4 order and stated that no actions would be taken until mandate had been issued from the Court of Appeals or the Supreme Court. Contending that the trial court erred in vacating the February 4 order, the mother filed a Tenn. R.App. P. 10 application for extraordinary appeal before the Court of Appeals. The Court of Appeals granted this application on February 24, 1999, ordered the Clerk of the Appellate Court to issue mandate, and thereby directed the trial court to enter an order changing custody to the mother. Accordingly, the trial court entered an order on February 26, 1999, awarding custody of the children to the mother, and the father proceeded to file an application for extraordinary appeal before this Court on March 11, 1999. On March 29, 1999, we granted the father's application, directed the parties to file briefs within ten days, and ordered that oral argument would not take place. Tenn. R.App. P. 10(d). Thereafter, on April 2, 1999, the father also filed a Tenn. R.App. P. 11 application for permission to appeal in this Court, asking this Court to review the merits of the Court of Appeals' February 2, 1999 opinion. We have chosen to resolve the Tenn. R.App. P. 10 and Tenn. R.App. P. 11 applications in this single opinion.

We find that the Court of Appeals erred in issuing mandate before sixty-four days had passed from the Court of Appeals' February 2, 1999 judgment or before a Tenn. R.App. P. 11 application for permission to appeal had been considered by this Court. Nevertheless, because we deny the father's Tenn. R.App. P. 11 application for permission to appeal, the mother shall retain primary custody of the children.

PROCEDURAL HISTORY

This case began in June 1996 when Plaintiff/Appellant Todd Frederick Brooks ("the Father") filed a complaint against Defendant/Appellee Linda Faye Carter ("the Mother") in Shelby County Circuit Court, alleging abandonment and inappropriate marital conduct. The Mother counterclaimed for divorce on the grounds of inappropriate martial conduct and irreconcilable differences. Both parties sought custody of their three minor children: Ashleigh, born August 1989, Jared, born February 1992, and Dylan, born September 1995. In July 1996 the trial court appointed Rita Robinson, a Memphis attorney, to serve as guardian ad litem for the three children.

By virtue of a consent order entered in August 1996, both parties continued to live in the marital home pending further orders of the court. A hearing was held over nine separate days in September and October 1996, after which the trial court entered a temporary custody order. The trial court granted the parties joint custody pending the divorce proceedings. The Father was designated as the primary custodial parent. The Father and the children were to continue to live in the marital home. The Mother was granted visitation on Monday through Thursday of each week, beginning at 3:15 p.m., when the two older children finished school, and ending by 8:30 p.m. The order also granted the Mother visitation every other weekend from 8:00 a.m. on Saturday until 10:00 a.m. on Sunday. On the other weekends, the Mother was granted visitation on Sunday from 10:00 a.m. to 9:00 p.m.

In February 1997, the trial court relieved the guardian ad litem of her duties and appointed a Court Appointed Special Advocate ("CASA") to represent the interests of the children. The trial court conducted a trial in July 1997. The Court of Appeals' February 2, 1999 opinion, written by Judge Farmer, cogently discusses the testimony presented during this trial:

In the present case, the evidence revealed the following facts, most of which were undisputed. The Father worked as an obstetrician-gynecologist and was affiliated with Methodist Central Hospital in Memphis. The Father also served as a clinical instructor at the University of Tennessee-Memphis. The Father participated in a nineteen-physician call group. On weekdays, the Father generally left the house at 7:00 a.m. and did not return until about 6:00 or 6:30 p.m. The Father's job required him to be on call for his own patients from 7:00 a.m. to 5:00 p.m. during the work week. In addition, two or three times per month, the Father was required to be on call to treat the patients of the other physicians in his group. On these occasions, another adult besides the Father was required to stay with the children in the marital home because, at any moment, the Father could be called to the hospital to deliver a baby.

In contrast, the Mother had a more flexible work schedule which enabled her to spend a greater portion of her time with the children. The Mother, who had an MBA degree from the University of Memphis, worked part-time in the personnel department at Federal Express. She worked three days per week, Tuesday, Wednesday, and Friday. The Mother was able to arrange her work schedule so that she could pick up the children from school every afternoon at 3:15 p.m. The Mother also transported the children to extracurricular activities in the afternoon, such as piano, gymnastics, and martial arts lessons, and she provided the children with their evening meal. During the marriage, the parties hired a nanny to watch their youngest child during the work week. During most weeks, the Mother cared for the youngest child on Monday, and the nanny cared for him from Tuesday through Friday. The Mother also cared for the youngest child on Saturday while the Father spent time with the two older children.

At the temporary custody hearing and, later, at the final divorce trial, both parties claimed to be the children's primary caregiver. The Mother testified that she breast-fed all three children and stayed home with them during the first six months of their lives. According to the Mother, she also helped the children prepare for school in the morning and made sure that they were properly dressed and groomed. On the other hand, the Father testified that he awakened the children, fed them breakfast, helped them dress, and transported them to school each weekday morning. The Father also testified that, the majority of the time, he was the parent who bathed the children and put them to bed at night.

Despite the Father's claims to be the children's primary caregiver, the overwhelming weight of the testimony supported the conclusion that the Mother consistently fulfilled this role throughout the parties' marriage. In his own testimony, for example, the Father acknowledged that the Mother was the parent primarily responsible for ensuring that the children's health-care needs were met. As a general rule, the Mother transported the children to the pediatrician's office, used the children's insurance prescription card to get their prescriptions filled, administered the children's medications, and cared for the children when they became ill. Most of the time, the Mother was the parent who stayed home from work when the children were ill. The Mother also was the parent who took the children to the dentist's office for checkups every six months.

The parties' youngest child was born with a large birthmark on the side of his face, which was described by the parties and doctors as a giant pigmented nevus. The child had undergone several surgeries to correct this condition, and at least two more surgeries would be required in the future. The Mother's testimony was uncontradicted that she was the parent who largely was responsible for the child's care after each surgery. The Mother explained that this care required that a piece of silicone be placed on the child's face and secured by a protective cap. The Mother expressed concern over the child's care while he was in the Father's custody because, on several occasions when she picked up the child for scheduled visitation, either he was not wearing the protective cap or the nanny had not placed the silicone on his face correctly.

In addition to ensuring that the children's medical needs were met, the Mother also played a more active role than did the Father in ensuring that their educational needs were met. The Father acknowledged that the Mother had more contact with the children's teachers than he did, a fact which was confirmed by one of the children's teachers. The Mother served as a room mother at school and attended almost all of the children's school parties. According to the same teacher, the Mother inquired as to the child's progress on a regular basis, whereas the Father never had consulted the teacher on this matter. In fact, the teacher did not remember ever having spoken to the Father. The Father further acknowledged that the Mother set up a special room in the parties' home where she presented additional educational materials to the children and that the Mother had taught sign language to the parties' oldest child.

In addition to the foregoing responsibilities, the Father acknowledged that the Mother had...