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Berg v. Berg

Court of Appeals of Tennessee, Nashville

May 8, 2018

PHILIP FOXWELL BERG, Father/Respondent,
KEIKO SHIGENO BERG, Mother/Petitioner.

          On Rule 10 application from the Circuit Court of Davidson County, Tennessee No. 12D-575

          Gregory D. Smith (Sup. Ct. No. 11684) Brenton H. Lankford (Sup. Ct. No. 30223) STITES & HARBISON PLLC Attorneys for Father/Respondent


         Comes now the Father/Respondent, Philip Foxwell Berg ("Father"), by and through counsel and pursuant to Tennessee Rule of Appellate Procedure 10, and files this Response to the Application for Permission for Appeal filed by the Mother/Petitioner, Keiko Shigeno Berg ("Mother"), on April 24, 2018.


         A review of Mother's Application reveals that, at best, Mother has inadvertently omitted material facts and misinterprets certain facts or, at worst, misleads the Court.[1] Father will address the issues raised by Mother in turn and asks the Court to deny the Rule 10 Application. Father asks for his fees incurred in defending the Rule 10 Application.

         This Brief is in response to the Mother's contention that the trial court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review by this Court. Mother's argument to support this conclusion can be distilled to four distinct arguments: (1) that as "[Mother] was given no notice that she was at risk to lose all contact with her children[, ]" (Rule 10 Application at p 10.), her due process was violated based on insufficient notice; (2) that the facts did not support a finding that the children would be subject to a likelihood of substantial harm absent a temporary modification of the parties' Permanent Parenting Plan; (3) the trial court erred in suspending her rights of parents as enumerated by Tennessee Code Annotated section 36-6-101; and (4) that the trial court's March 12, 2018 Protective Order concerning the use and dissemination of Dr. Bradley Freeman's March 7, 2018 Report (the "Report") is overly broad and Mother was not allowed to prepare a proper rebuttal to the report.


         Unlike Rule 9 appeals, Rule 10 appeals are reserved only for extraordinary departures from the accepted and usual course of judicial proceedings. See, e.g., Jones v. Vasu, 326 S.W.3d 577, 578 (Term. Ct. App. 2010) (granting extraordinary appeal in a health care liability suit where the trial court denied the defendant's motion to dismiss despite the plaintiffs intentional delay in service of process which had rendered the filing of the complaint statutorily ineffective); Joiner v, Joiner, No. E2005-01619-COA-R10-CV, 2005 Term. App. LEXIS 673, at *8 (Term. Ct. App. Oct. 27, 2005) (granting extraordinary appeal where a trial judge disqualified an attorney from representing a litigant simply because the attorney had announced his candidacy for the judge's position); Pykosh v. Earps. No. M2004-01507-COA-R10-CV, 2004 Term. App. LEXIS 525, at *1 (Tenn. Ct. App. Aug. 17, 2004) (granting extraordinary appeal where the trial court denied a defendant's motion for a physical examination of the plaintiff, though the plaintiff had been granted the opportunity to have his own doctor testify); State ex rel. Dean v. Nelson, 169 S.W.3d 648, 649 (Tenn. Ct. App. 2004) (granting extraordinary appeal in an action to close an adult business where the court issued a temporary restraining order without five days written notice and then allowed the restraining order to remain in effect pending the trial); Korthoff v. Korthoff, No. W2001-01712-COA-R10-CV, 2001 Term. App. LEXIS 724, at *2 (Tenn. Ct. App. Sept. 24, 2001) (granting extraordinary appeal where the trial court, absent authority, ordered "a partial distribution of marital property prior to a final adjudication"). "It is important for appellate courts to exercise restraint in granting Rule 10 appeals. Under our Rules, the appellate courts have no authority to unilaterally interrupt a trial court's orderly disposition of a case unless the alleged error rises to the level contemplated by the high standards of Rule 10." Gilbert v. Wessels. 458 S.W.3d 895, 898 (Tenn. 2014).

         In this case, there was no extraordinary departure from the accepted and usual course of judicial proceedings; the trial court adhered to established legal standards.


         1. On November 7, 2013, the trial court entered a Final Decree of Divorce incorporating an agreed upon Permanent Parenting Plan in which each party received 182.5 days with each of their minor children, Ellie and Samuel. Mother was named the primary residential parent.

         2. On March 28, 2016, Mother filed a Petition to Modify Parenting Plan.[2]

         3. On May 19, 2016, Father filed an Answer to Mother's Petition to Modify Parenting Plan and Counter-Petition to Modify Parenting Plan, in which he requested, among other things, to be named primary residential parent and to have sole decision making for each of the parties' minor children. (Sec Exhibit A; Father's Counter-Petition.)

         4. From the filing of Father's Counter-Petition to present, the parties engaged in intensive litigation and discovery concerning the custody of the parties' minor children. (See Exhibit B; True Copy of Rule Docket.) As can be gathered from Exhibit B the vast majority of the pleadings and orders concern custody issues.

         5. On June 5, 6 and 7, 2017, the parties participated in the first three days of a final hearing on both parties' Petitions concerning modification of the Permanent Parenting Plan. The trial did not conclude during this period.

         6. On September 18, 2017, the parties entered into an Agreed Order in which the children would be evaluated by Dr. Bradley Freeman, pursuant to Tennessee Rule of Civil Procedure 35. (See Exhibit C; September 18, 2017 Agreed Order.) The parties subsequently entered into an Agreed Order expanding the scope of Dr. Freeman's evaluation to include the parties and not just the children. (See Exhibit D; October 20, 2017 Agreed Order.)

         7. After the entry of the Agreed Order appointing Dr. Freeman as the Rule 35 expert, the parties entered into an Agreed Order setting the final hearing for March 13, 14, 20, and 21 2018.

         8. On February 9, 2018, over a month prior to the hearing in which Mother complains that she did not have proper notice, Father filed an Amended Proposed Parenting Plan with the Court in which Mother would receive no time with the children and contained the following provision:

Due to Mother's continued behavior designed to alienate the affections of the children against Father, it is in the best interests of the children that Mother have no parenting time with either child pending further orders of the Court
// is the Court's intent that all contact between Mother and the children be suspended pending further orders of the Court.
Mother is hereby enjoined and restrained from having any contact with the children whatsoever, even contact such as is outlined in the Rights of Parents section of this Parenting Plan, pending further orders of the Court.

(See Exhibit E; February 9, 2018 Notice of Filing Proposed Parenting Plan) (emphasis added).[3]

         9. On March 12, 2018, the trial court issued a Protective Order along with Dr. Freeman's Rule 35 Report.

         10. On March 13, 2018, Father filed a Motion to Suspend the Mother's Parenting Time the morning that the trial was to resume. That same morning, Mother filed a Motion to Continue the Trial. Both of these pleadings are attached as exhibits to Mother's Application.

         11. At the beginning of the resumption of the trial on March 13, 2018, the Court heard argument on both Father's Motion to Suspend Mother's Parenting Time and Mother's Motion to Continue the Trial. Introduced into evidence at trial at that hearing was Dr. Freeman's report and other exhibits. (See Exhibit F; Transcript from March 13, 2018); (Exhibit G; Dr. Freeman Report); (Exhibit H; Other Exhibits From March 13, 2018 Hearing).

         12. After considering the exhibits and arguments of counsel, the Court entered an Order both suspending Mother's parenting time and continuing the trial to allow Mother to depose Dr. Freeman and otherwise prepare a rebuttal to Dr. Freeman's report. (See Exhibit I; March 13, 2018 Order.)

         IV. ANALYSIS

         A. Mother's procedural due process right to notice was not violated.

         1. Mother waived her objection to the hearing proceeding on March 13, 2018.

         In what appears to be the crux of Mother's application, she argues that she was not given appropriate notice that her parenting time could be suspended by the trial court at the March 13, 2018 hearing. This argument is procedurally defective, as a review of the March 13, 2018 transcript reveals Mother's counsel did not object to Mr. Berg's Motion being heard on the morning of March 13, 2018 due to insufficient notice. (See Exhibit F.)[4] As such, the argument is waived. See Term. R. App. P. 36(a) ("Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error."); see also Term. R. Evid. 103(a)(1) (requiring a timely objection as a prerequisite to a finding of error based on the trial court's admission of evidence); Butler v. Pitts. -- S.W.3d --, 2016 Tenn.App. LEXIS 10 (Tenn. Ct. App. Feb. 12, 2016) ("Appellants did not raise a particular argument before the trial court either in their pleadings or during the hearing, and thus it was waived.").

         Mother cannot argue that the trial court ". . . so far departed from the accepted and usual course of judicial proceedings as to require immediate review ..." for proceeding with the hearing on March 13, 2018 when Mother did not object to the Motion being heard, and, in fact, filed and argued her own ...

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