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
RESPONSE TO RULE 10 APPLICATION
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.
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. 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.
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
STANDARD OF REVIEW
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
case, there was no extraordinary departure from the accepted
and usual course of judicial proceedings; the trial court
adhered to established legal standards.
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.
March 28, 2016, Mother filed a Petition to Modify Parenting
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
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.
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.
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
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.
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
// 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
March 12, 2018, the trial court issued a Protective Order
along with Dr. Freeman's Rule 35 Report.
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.
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).
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,
Mother's procedural due process right to notice was not
Mother waived her objection to the hearing proceeding
on March 13, 2018.
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.) 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.").
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