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Milton v. Harness

Court of Appeals of Tennessee, Knoxville

March 3, 2017


          Assigned on February 16, 2017

         Appeal from the Chancery Court for Loudon County No. 12472 Frank V. Williams, III, Chancellor.

         This is an extraordinary appeal, filed pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, seeking review of the Trial Court's ex parte injunction temporarily changing custody of the parties' six-year-old child ("Child"), born out-of-wedlock, pending the final adjudication of the Petition for Custody and Injunction ("Petition" or "Petition for Custody") filed by the Petitioner, Randall V. Harness, Jr. ("Father"), in which he seeks to legitimate and obtain custody of Child. We conclude that an extraordinary appeal is warranted, that both the ex parte injunction changing custody and the Trial Court's subsequent order continuing that injunction should be vacated, and that custody of Child be restored to the Respondent, Tamara Reece Milton ("Mother"), pending further action by the Trial Court.[2]

         Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Chancery Court Vacated and Remanded.

          Stephanie G. Crippen, Knoxville, Tennessee, for the appellant, Tamara Reece Milton.

          David L. Valone, Knoxville, Tennessee, for the appellee, Randall V. Harness, Jr.

          John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., and Thomas R. Frierson, II, JJ., joined.



         Mother and Father were never married. Child was born in October of 2010 in Arizona. Mother listed Father on Child's birth certificate. Shortly after Child's birth, Father was deployed to Afghanistan as a United States Marine from November of 2010 until March of 2011. Upon his return from deployment, Father was stationed at the Marine Corps Base in Southern California known as Twentynine Palms. In April of 2011, deoxyribonucleic acid (DNA) testing confirmed that Father is the biological father of Child. In May of 2011, Father signed an Acknowledgement of Paternity with the Arizona Department of Economic Security, as well as a sworn Marine's Statement acknowledging that he was Child's father and directing that $300.00 per month be provided to Mother by military allotment as support for Child. Father also applied for a Uniformed Services Identification Card and DEERS[3] enrollment for Child which allowed Child, as Father's dependent, to receive military benefits including health insurance. On that application, Father certified that he was "providing or maintaining [a] household [for Child]" and providing "over 50% support" for Child, as is required by the federal regulations defining the circumstances under which an illegitimate dependent child of a service member may obtain military dependent benefits. See 32 C.F.R. § 199.3(b)(2)(ii)(E). For the next seventeen months after his return from deployment, and while stationed in California, Mother granted Father informal visitation with Child on a regular basis. Father would travel to Arizona for this visitation, staying in hotels or with Mother or her grandparents.

         In November of 2012, Father was discharged from the military and moved to Arizona where he attended school and continued his informal relationship with Child. In September of 2013, Father moved to Lenoir City, Tennessee. Despite the distance between them, Mother and Father maintained their arrangement of Father having informal visitation with Child, including Father traveling to Arizona and bringing Child back to Tennessee for extended visitation. However, there was never an order entered adjudicating Father to be Child's legal father or determining the custodial or visitation rights of the parties to Child. Child has lived with Mother since her birth.

         In September of 2014, Mother moved with her sister and Child to Lenoir City, Tennessee. Shortly after her arrival, Mother obtained employment with CSL Plasma where she worked until October of 2016, when Mother and Child moved back to Arizona. Mother's sister remained and is still a resident of Knoxville, Tennessee. Prior to the move back to Arizona, Child had just started Kindergarten at Highland Park Elementary School in Lenoir City. During the approximately two years that Mother and Child lived in Tennessee, Mother allowed Father extensive informal visitation with Child.

         Two weeks after Mother and Child moved back to Arizona, Father filed his sworn Petition seeking to legitimate and obtain custody of Child in the Chancery Court for Loudon County, Tennessee. Father asserted in his Petition that the Trial Court had jurisdiction to adjudicate the matter because Tennessee was Child's “home state” pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”). See Tenn. Code Ann. § 36-6-205(7). Father further alleged in his Petition that the requirements for jurisdiction under the UCCJEA to make an initial custody determination of a child absent from the state were present. See Tenn. Code Ann.§ 36-6-216(1)(a).

         In his Petition, Father requested that the Trial Court issue an injunction upon the filing of the Petition "requiring the transfer of custody of the parties' minor child to [Father], " or, in the alternative, requiring Mother to "immediately return the minor child to Loudon County, Tennessee, pending the full adjudication of this matter." Father alleged in his Petition that "he has concerns for the well-being of the parties' minor child due to the instability of [Mother], in that there have been times when she and the minor child were living with [Mother's] grandmother, and because [Mother] was not willing to abide by the grandmother's reasonable 'house rules, ' the [Mother] would become frustrated and needlessly leave her grandmother's home with the child and move to a potentially less appropriate, stable and safe environment—as she has done repeatedly in both Tennessee and Arizona since [Child] was born." Father also alleged in his Petition that Mother's "numerous moves with the parties' minor child were often due to domestic disagreements between [Mother] and the head of any of the given households, often without a plan of where to go next, showing little to no regard for the best interests and well-being of the parties' minor child." However, Father also alleged in his Petition that Mother "had a good, steady job for which she was paid well" while living in Tennessee. While Father alleged in his Petition that Mother had "sporadically moved between Lenoir City and Knoxville" during the time she lived in Tennessee, and that "she lived with either her sister, friends and/or co-workers" during that time, Father also alleged in his petition that Mother had only had two different addresses in Lenoir City during this time at which she had received mail and registered her vehicle.

         In addition to his sworn allegations, Father accompanied his Petition with an affidavit in which he reaffirmed that Mother had worked at CSL Plasma for the entire time she had lived in Tennessee, but also asserted that he had "concern about her stability" because "she has moved numerous and frequent times and has resided with our daughter at six different residences in the past two years." Yet Father also stated in his affidavit that, during the time she had attended Highland Park Elementary School, Child had done "very well in school." Father's affidavit also stated, without elaboration, that he felt Child "may suffer irreparable harm" if not returned to Tennessee and that it was in Child's "best interest" for him to be "granted primary care, custody and control of [Child] pending the resolution of the issue of custody." Father also attached to his Petition the Acknowledgement of Paternity he had signed with the ...

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