Session: September 6, 2017
by Permission from the Court of Court of Appeals Juvenile
Court for Hamilton County No. 248546, 248547 Robert D.
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
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Appeals Reversed; Remanded to the Juvenile Court
Randall D. Larramore, Chattanooga, Tennessee, for the
R. Beard, Chattanooga, Tennessee, for the appellee, L.A.S.
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.
A. PAGE, JUSTICE
Procedural History and Facts
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.,  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.
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.
having difficulties exercising his parenting time, in
February 2012 Father filed a petition in the Hamilton County
Juvenile Court 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.
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. The juvenile court issued an
order incorporating the parenting plan on March 1, 2013.
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.
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.
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.
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
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
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
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 other reasonable
tie for her in Nevada. Mother's extended family is in
Chattanooga. Father's wife's extended family is in
Chattanooga. It is the Court's opinion that Mother lacks
integrity on several issues, including this one.
While both Father and Mother have at times acted
irresponsibly and seemed to lack sound parenting judgment,
the Court finds that there was a material change in the
circumstances of the children because of Mother's deceit,
Mother's occupation as a ...