C.W.H. v. L.A.S.

• Decision Date: 19 December 2017
• Docket Number: No. E2015-01498-SC-R11-JV,E2015-01498-SC-R11-JV
• Citation: 538 S.W.3d 488
• Parties: C.W.H. v. L.A.S.
• Court: Tennessee Supreme Court

538 S.W.3d 488

C.W.H.

v.L.A.S.

No. E2015-01498-SC-R11-JV

Supreme Court of Tennessee, AT KNOXVILLE.

September 6, 2017 Session

FILED December 19, 2017

Randall D. Larramore, Chattanooga, Tennessee, for the appellant, C.W.H.

Alan R. Beard, Chattanooga, Tennessee, for the appellee, L.A.S.

Roger A. Page, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Sharon G. Lee, and Holly Kirby, JJ., joined.

Roger A. Page, J.

This is a custody case involving the minor children of unmarried parties. C.W.H. (hereinafter "Father") and L.A.S. (hereinafter "Mother") agreed to a modification of an existing parenting plan in 2013. Subsequently, Father learned information to which he was not privy during the settlement conference, namely, that Mother had relocated from her state of residence (Ohio) to Nevada with the parties' minor children, where she was employed as a prostitute. Father filed a motion for an emergency temporary custody order and a temporary restraining order. Father prevailed in a hearing before the juvenile court magistrate and was designated as the primary residential parent. Mother requested a hearing before the juvenile court. Following a hearing, the juvenile court found a material change in circumstances and upheld the magistrate’s determination. Mother appealed to the Court of Appeals, which vacated and remanded the case for the juvenile court to conduct a best interest analysis. On remand, the juvenile court affirmed its earlier findings regarding a material change in circumstances and, in addition, concluded that changing the primary residential parent from Mother to Father was in the best interest of the children. Mother again appealed to the Court of Appeals, which concluded "that the evidence preponderate[d], in part but significantly, against the juvenile court’s factual findings," reversed the juvenile court, and mandated that its order be carried out within twenty days. We granted Father’s application for permission to appeal pursuant to Tennessee Rule of Appellate Procedure 11 to decide, as set forth in Father’s application, whether "the Court of Appeals err[ed] in reversing the [juvenile court] and awarding Mother custody of the minor children" and whether "the Court of Appeals err[ed] in ordering the change in custody prior to an opportunity for the Father to appeal to this Court?" We answer both questions in the affirmative, reverse the decision of the Court of Appeals, and remand this matter to the juvenile court for further proceedings consistent with this opinion.

I. Procedural History and Facts

Mother and Father began a dating relationship in 2008. During that time, Father lived in Pennsylvania and Mother lived in Ohio. Mother became pregnant with the parties' older child, P.H.,¹ and gave birth to their son on January 22, 2009. Soon thereafter, Mother moved to Chattanooga, Tennessee, and resided with her mother. Father relocated two to three months later, in August 2009, and lived with Mother. Father cared for P.H. as a stay-at-home father. The parties' younger child, daughter V.H., was born on June 27, 2010. Because Father had found employment, the parties shared parenting responsibilities of both children.

In November 2010, the relationship deteriorated and the parties separated. Mother planned to relocate to Ohio in pursuit of a master’s degree. To facilitate the move, the parties entered into an agreed parenting plan in May 2011 to accommodate the distance and address parenting time. The plan designated Mother as the primary residential parent and allotted Father 144 days of parenting time per year. Mother relocated to Ohio in June 2011, but the children remained with Father until the end of the summer so that Mother could acclimate to her new residence.

After having difficulties exercising his parenting time, in February 2012 Father filed a petition in the Hamilton County Juvenile Court² to modify the 2011 agreed parenting plan. Prior to resolution of Father’s petition, Father contacted Mother in January 2013 and confided in her that he and his new wife (hereinafter "Stepmother") had an altercation the previous evening, which caused her to leave the home after consuming alcohol. As a result, Stepmother was arrested and placed in jail until the following day. While Stepmother was in jail, Father invited a female acquaintance to the residence under the auspices of obtaining legal advice because the acquaintance’s grandmother was an attorney. Instead, as the children were sleeping, Father and his female acquaintance ingested cocaine that she brought with her. Because Stepmother was still in jail, Father asked Mother to have her family assist with childcare in the interim. Mother stated that she did so but that she also tried to protect Father’s image by not divulging the reason that he requested help from her family. Father indicated that he had not ingested cocaine since that date; he and Stepmother submitted to two separate drug tests in July and October 2013 that yielded negative results.

During a February 2013 conference, Mother indicated that she was working as an independent contractor in social work. She said she was seeking employment in different states and that Nevada was one such state. Father had previously noted that in January 2013 when the children arrived in Tennessee for a visit, the children’s luggage bore labels from Charlotte and Phoenix, but he was unaware that the children had visited the western United States. The parties agreed upon a modified plan that addressed Father’s concerns but left the residential parenting designation and the parenting time between the parties as it was.³ The juvenile court issued an order incorporating the parenting plan on March 1, 2013.

Shortly thereafter, Mother’s sister contacted Father and informed him that Mother actually resided in Nevada with the minor children and that she was employed as a prostitute. Father had believed that Mother resided in Ohio and worked as an independent contractor. Father researched the internet and confirmed these assertions when he found sexually explicit photographs and videos of Mother advertising her services as a prostitute employed by the Moonlight Bunny Ranch in Nevada. He filed a motion for an emergency temporary custody order and temporary restraining order on March 12, 2013. The magistrate found that a material change in circumstances had occurred and that it was in the children’s best interest for Father to be designated as the primary residential parent. Mother requested a hearing before the juvenile court, and the juvenile court heard testimony on October 18, 2013, and December 2, 2013.

Relevant to this appeal, Mother testified at trial that she had previously been employed as a prostitute in Nevada but that she was no longer so employed. She stated that she accepted employment at the Moonlight Bunny Ranch for financial reasons due to the large amount of debt she had accumulated pursuing her master’s degree and Father’s failure to provide child support for the minor children. When questioned about why she did not disclose her relocation to Nevada and her employment there, she stated that she was not asked about it. At the time of trial, Mother was employed as a social worker, and she provided documentation to that effect. She indicated that she would not return to prostitution because that line of work seemingly affected the court’s decision with regard to her continuing to be the primary residential parent and because the code of ethics of her current career strictly forbade such work.

The juvenile court also heard testimony relative to the issue of Mother’s hostility toward Father. In March or April 2011, before Mother’s departure to Ohio, Father met Stepmother, whom he married in September 2011. Mother acknowledged having a verbal altercation with Stepmother (before Father and Stepmother married) in the restaurant at which Stepmother was employed. Mother, while actually on a date with another man herself, learned from her date—who, unbeknownst to her, was a friend of Father—that Father had been dating Stepmother during the pendency of Mother’s relationship with Father. This revelation caused Mother to confront Stepmother and to engage in the public altercation with Stepmother.

When Father attempted to exercise his parenting time with the children in August 2011 for his birthday, Mother refused to allow Father to visit with the children outside of their daycare facility because Stepmother accompanied him on the visit. Father was denied his parenting time over the Thanksgiving holiday in 2011; Mother became angry and called the police, reporting that Father was attempting to kidnap the children.

Prior to Father’s and Stepmother’s wedding, Mother received an email from Father’s account that she suspected had been sent by Stepmother. With the intent to provoke Stepmother, Mother replied to the email and attached a sexually explicit photograph of herself to the email. Mother refused to allow the minor children to participate or even to attend Father’s and Stepmother’s wedding, and she repeatedly admonished the children that Father’s and Stepmother’s new baby, daughter C.H., was not their sister.⁴

During the pendency of the litigation in the juvenile court, Father sought and obtained a position with a different restaurant management company that would allow him to receive managerial training. Father was also able to provide health insurance for the children through his new employer, and he provided copies of insurance cards for the children to Mother at the hearing.

The juvenile court ruled in favor of Father, stating:

At the time of the hearing before the Magistrate on August 1, 2013, Mother was still working full-time as a legal prostitute in Nevada. At the time of the rehearing, Mother testified that she is now working full-time as a social worker in Nevada.

Although Mother testified that she has no plans to work as a prostitute any more, there apparently is no

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