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holding that Rule 6.02 did not apply to petitions opposing relocation of a parent
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No. M2012–01807–COA–R3–CV.
2013-05-7
Thomas Goodman RUTHERFORD v. Melodey Joice Lawson RUTHERFORD.
George Davis, Brentwood, Tennessee, for the appellant, Melodey Joice Lawson Rutherford. Paul A. Rutherford, Wende J. Rutherford, Nashville, Tennessee, for the appellee, Thomas Goodman Rutherford.
George Davis, Brentwood, Tennessee, for the appellant, Melodey Joice Lawson Rutherford. Paul A. Rutherford, Wende J. Rutherford, Nashville, Tennessee, for the appellee, Thomas Goodman Rutherford.
OPINION
ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the Court, in which HOLLY M. KIRBY, J., concurred separately and J. STEVEN STAFFORD, J., dissented.
ALAN E. HIGHERS, P.J., W. S.
Mother, who spent greater time with the parties' minor child, notified Father via certified letter of her intent to relocate out of state. Thirty-three days later, Father filed a petition in opposition to the move. The trial court allowed Father to oppose relocation, despite his failure to formally oppose the move within thirty days, noting that Mother had learned of Father's opposition within the thirty-day period and that she had not relocated until “well after” Father filed his petition.
In this statutory construction case, we conclude that Tennessee's parental relocation statute, Tennessee Code Annotated section 36–6–108, mandates that a parent wishing to oppose relocation file a petition in opposition within thirty days of receipt of notice of the proposed relocation. If no written petition in opposition is timely filed, the parent proposing to relocate with the child shall be permitted to do so, notwithstanding the absence of harm or prejudice to the relocating parent due to the untimely petition. Because Father failed to file a written petition in opposition to Mother's proposed relocation within thirty days of receipt of her certified letter, we find the trial court erred in conducting any further analysis pursuant to section 36–6–108. The decision of the trial court is reversed, and Mother is permitted to relocate to Omaha, Nebraska, with the minor child. Father's request for appellate attorney fees is denied, and all remaining issues are deemed pretermitted.
I. Facts & Procedural History
Thomas Goodman Rutherford (“Father”) and Melodey Joice Lawson (“Mother”) divorced in 2007 after an approximate seven-year marriage. The parties have one minor child. In 2010, the parties entered into an “Agreed Order,” which incorporated a revised Parenting Plan allowing Mother 214 days of parenting time with the child and allowing Father 151 days with the child.
On January 3, 2012, Mother sent Father a certified letter notifying him of her intent to relocate to Omaha, Nebraska. The letter, which Father acknowledged receiving on January 4, 2012, stated as follows:
This is to notify you, that on March 5, 2012, I plan on moving to Omaha Nebraska.
My company is transferring me there to take a new position.
Thomas, you may file a petition in opposition to my move within thirty days of receipt of this notice. If you do that we will have to fight this in court. Otherwise we need to sit down and come up with a new parenting plan that will make the best of this for us all.
Apparently on January 25, 2012, Mother and Father met to discuss Mother's proposed relocation. It is undisputed that at the meeting, Father verbally expressed his opposition to relocation, and the parties were unable to reach an agreement regarding the proposed relocation.
On February 6, 2012–33 days after receiving Mother's relocation notice letter-Father filed a “Petition in Opposition to Proposed Parental Relocation, and to Modify” (“Petition in Opposition”). Father alleged that relocation would be detrimental to the child, and he sought to be named the child's primary residential parent. In response, Mother filed a “Petition to Relocate” claiming that the move had a reasonable purpose, that it would not harm the child, and that it had no vindictive motive. Additionally, Mother noted that Father had failed to file a petition in opposition to the move within thirty days of receipt of the certified notice letter,
and, therefore, she requested that she be allowed to relocate and that Father's visitation be modified as set forth in an attached proposed Parenting Plan.
On appeal, Father argues that Mother waived the defense of Father's failure to file his Petition in Opposition within 30 days because she failed to raise the issue in her March 9, 2012 Answer to Father's Petition in Opposition. However, we find no waiver, as Mother specifically asserted this defense in her February 9, 2012 Petition to Relocate.
On February 13, 2012, the trial court entered a Temporary Restraining Order preventing Mother from relocating with the minor child. Thereafter, on April 25, 2012, Mother filed a “Motion to Determine Status of Case Pursuant [to] TCA 36–6–108(g)” questioning why she had been temporarily enjoined from relocating with the child when Father had failed to timely oppose the move in writing. In response, Father argued that his untimely filing was the result of excusable neglect because “he was without the financial resources to hire an attorney at the time he received notice of Mother's intent to relocate” and because his present attorney, who agreed to serve as a favor to Father's father, was unable to meet with him until after the thirty-day period had expired.
Following a hearing on May 22, 2012, the trial court entered an Order finding that Tennessee Code Annotated section 36–6–108(g)'s thirty-day time period should not “be applied to bar Father's right to contest Mother's relocation[,]” noting that “[t]here is no proof of harm or prejudice to Mother resulting from the date of his filing.”
The trial court ultimately found that excusable neglect was not an issue in the case because it determined that the 30–day period for filing a petition in opposition was permissive, rather than mandatory. The excusable neglect issue is not pursued on appeal.
A trial on the merits was conducted in July 2012. On August 1, 2012, the trial court entered an order
in which it rejected Father's argument that the parties were spending substantially equal time with the minor child; the court concluded that Mother spent greater time with the child.
The order specifically incorporated the trial court's oral findings following the July 3, 2012 hearing.
However, the trial court found that Mother's proposed relocation lacked a reasonable purpose because it was the result of a voluntary lateral move—rather than an employer “transfer” as she had alleged-and because Mother had “only a belief and a hope that she w[ould] advance in her career in her position in Nebraska[.]” After determining that the move lacked a reasonable purpose, the court conducted a best interest analysis, and it determined that relocation was not in the child's best interest. It then designated Father as the child's primary residential parent. In light of the trial court's findings, a new parenting plan was entered on August 1, 2012, and a final order was entered on October 26, 2012. Mother timely appealed to this Court.
This finding is not challenged on appeal.
II. Issues Presented
On appeal, Mother asks this Court to construe Tennessee Code Annotated section 36–6–108 to determine whether its thirty-day period for filing a petition in opposition to relocation is permissive or mandatory. Additionally, Mother asks this Court to find that the evidence preponderates against the trial court's conclusion that her relocation lacked a reasonable purpose, and Father asks this Court for an award of attorney fees pursuant to Tennessee Code Annotated section 36–6–108(I) and/or because Mother's appeal is frivolous.
For the following reasons, we reverse the decision of the trial court, and we permit Mother to relocate to Omaha, Nebraska, with the minor child.
III. Standard of Review
This is a matter of statutory interpretation, which presents a question of law. In re Estate of Trigg, 368 S.W.3d 483, 490 (Tenn.2012). Accordingly, our review is de novo, with no presumption of correctness afforded to the trial court's legal conclusions. Id. As our Supreme Court has explained:
When interpreting statutes, a reviewing court must ascertain and give effect to the legislative intent without restricting or expanding the statute's intended meaning. The courts must examine the language of the statute and, if the language is unambiguous, apply the ordinary and plain meaning of the words used. Furthermore, every word in a statute is presumed to have meaning and purpose. In short, “[t]he cardinal rule of statutory construction is to effectuate legislative intent, with all rules of construction being aides to that end.”
U.S. Bank, N.A. v. Tenn. Farmers Mut. Ins. Co., 277 S.W.3d 381, 386 (Tenn.2009) (citations omitted).
IV. Discussion
A. Requirements of Tennessee Code Annotated section 36–6–108
The requirements and purposes of Tennessee's parental relocation statute, Tennessee Code Annotated section 36–6–108, have previously been explained by this Court:
“In 1998, our state legislature enacted Tennessee Code Annotated section 36–6–108, which applies when a parent seeks to relocate outside the state or more than 100 miles away from the other parent residing within the state.” Kawatra v. Kawatra, 182 S.W.3d 800, 802 (Tenn.2005). The statute was enacted to provide consistency in relocation proceedings. Helton v. Helton, No. M2002–02792–COA–R3–CV, 2004 WL 63478, at *4 (Tenn.Ct.App. Jan. 13, 2004). It provides that a parent who desires to relocate shall send notice by mail to the other parent of his or her intent to move at least sixty days prior to the move unless excused by a court for exigent circumstances. Tenn.Code Ann. § 36–6–108(a). The notice must contain the location of the proposed new residence, reasons for the proposed relocation, and a statement that the other parent may file a petition in opposition to the move within thirty days. [Tenn.Code Ann. § 36–6–108(a) ]. In the event no petition in opposition to the proposed relocation is filed within thirty days of receipt of the notice, the parent proposing to relocate with the child shall be permitted to do so. Tenn.Code Ann. § 36–6–108(g).
Under the statute, the appropriate standard to be applied when the other parent does file a petition in opposition to removal of the child depends upon whether the parents actually spend substantially equal amounts of time with the child. Thus, the trial court must first decide whether the parents are “actually spending substantially equal intervals of time with the child.” Tenn.Code Ann. § 36–6–108(c), (d). If they do, no presumption in favor of or against relocation arises, and the court decides the petition to relocate on the basis of the child's best interest. Tenn.Code Ann. § 36–6–108(c). “The approach differs if the parents are ‘not actually spending substantially equal intervals of time with the child.’ ” Kawatra, 182 S.W.3d at 802. The statute “reflects a legislatively mandated presumption in favor of relocating custodial parents who spend ‘the greater amount of time with the child.’ ” Elder v. Elder, No. M1998–00935–COA–R3–CV, 2001 WL 1077961, at *5 (Tenn.Ct.App. Sept. 14, 2001). If the parent who seeks to relocate with the child spends the greater amount of time with the child, the court “shall” permit the relocation unless the other parent can establish that the relocation: 1) does not have a reasonable purpose; 2) poses a threat of specific and serious harm to the child that outweighs the threat of harm from a change of custody; or 3) is due to a vindictive motive in that it is intended to defeat or deter visitation rights of the other parent. Tenn.Code Ann. § 36–6–108(d). The parent opposing the relocation bears the burden of proof to establish one of these three grounds, and if he or she fails to do so, the relocation shall be permitted. In re Iyana R.W., No. E2010–00114–COA–R3–JV, 2011 WL 2348458, at *3 (Tenn.Ct.App. Jun. 8, 2011) (citing Clark v. Clark, No. M2002–03071–COA–R3–CV, 2003 WL 23094000, at *3 (Tenn.Ct.App. Dec.20, 2003)). If one of these three circumstances is shown, the court then proceeds to a best interest analysis. Tenn.Code Ann. § 36–6–108(e).
Lima v. Lima, No. W2010–02027–COA–R3–CV, 2011 WL 3445961, at *3 (Tenn.Ct.App. Aug. 9, 2011).
In this case, it is undisputed that Father filed his Petition in Opposition thirty-three days after he received notice, via certified letter, of Mother's intent to relocate.
Based upon Father's failure to file his petition within thirty days, Mother, relying upon section 36–6–108(g),
In his appellate brief, Father implies that Mother's January 3, 2012 notice letter was insufficient. He briefly states, “Nowhere in the letter did Mother state that she was proposing to take the minor child with her to Nebraska when she moved[.]” It is unclear whether the sufficiency of Mother's notice was raised in the trial court, but in any event, insofar as Father attempts to challenge Mother's notice on appeal, we find that Father has waived consideration of this issue by failing to include such in his statement of the issues. Tenn. R.App. P. 13(b) (“Review generally will extend only to those issues presented for review.”).
essentially argued in the trial court that she should automatically be allowed to relocate with the child without further consideration by the court. The trial court, however, determined that subsection (g) did not operate to bar Father's attempted relocation contest. It acknowledged that Father's written petition was untimely, but it found that the statutory purposes behind section 36–6–108 had been fulfilled and that Mother had not been prejudiced by the three day delay because Mother had undisputedly learned of Father's opposition to relocation within thirty days of her notice letter and because Mother did not actually relocate “until well after” Father filed his Petition in Opposition. Essentially, the trial court concluded that the thirty-day petition filing period is “permissive” rather than “mandatory.” Therefore, notwithstanding Father's untimely petition, it inquired into the motives behind Mother's relocation, ultimately determining that they were unsatisfactory, and it conducted a best interest analysis, concluding that Father should be named the child's primary residential parent.
Subsection (g) provides in part that “[i]n the event no petition in opposition to a proposed relocation is filed within thirty (30) days of receipt of the notice, the parent proposing relocation with the child shall be permitted to do so.” Tenn.Code Ann. § 36–6–108(g).
On appeal, we are asked to construe the stringency of Tennessee Code Annotated section 36–6–108. That is, we are asked to determine whether the statute mandates or simply permits a parent who wishes to oppose relocation to file a written petition in opposition within thirty days of receipt of relocation notice. Our inquiry primarily focuses upon subsection (g) which, again, provides in relevant part that “[i]n the event no petition in opposition to a proposed relocation is filed within thirty (30) days of receipt of notice, the parent proposing to relocate with the child shall be permitted to do so.” Tenn.Code Ann. § 36–6–108(g) (emphasis added).
On appeal, Mother argues that section 36–6–108(g), by its plain language, requires the filing of a written petition in opposition to a proposed relocation within thirty days of receipt of relocation notice. She maintains that oral notification does not satisfy this requirement, that proof of harm or prejudice is not necessary to enforce the requirement, and that failure to comply with the requirement results in the proposed relocating parent being permitted to move without further consideration by the court.
In response, however, Father contends that a trial court considering a relocation request—whether or not a timely written petition in opposition has been filed—must consider both the factors set forth in subsections (d)
.Tennessee Code Annotated section 36–6–108, subsection (d), provides:
(1) If the parents are not actually spending substantially equal intervals of time with the child and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:
(A) The relocation does not have a reasonable purpose;
(B) The relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or
(C) The parent's motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.
....
of the statute. Father acknowledges that subsection (g) “does appear to make the filing of the petition within thirty (30) days mandatory to being heard[,]” but he contends that when subsection (g) is considered in conjunction with three other subsections of the statute, the thirty-day written petition procedure appears to become “permissive or even optional.”
.Tennessee Code Annotated section 36–6–108, subsection (e), provides:
If the court finds one (1) or more of the grounds designated in subsection (d), the court shall determine whether or not to permit relocation of the child based on the best interest of the child. If the court finds it is not in the best interests of the child to relocate as defined herein, but the parent with whom the child resides the majority of the time elects to relocate, the court shall make a custody determination and shall consider all relevant factors including the following where applicable:
(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and child;
(4) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(5) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;
(6) the stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9)(A) The reasonable preference of the child if twelve (12) years of age or older;
(B) The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; and
(11) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child.
First, Father points out that subsections (a) and (d) state that if a parent opposes relocation he or she “may” file a petition in opposition:
(a) If a parent who is spending intervals of time with a child desires to relocate ... the relocating parent shall send a notice.... The notice shall contain the following:
....
(4) Statement that the other parent may file a petition in opposition to the move within thirty (30) days of receipt of the notice.
....
(d) If ... the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child....
Tenn.Code Ann. § 36–6–108(a), (d) (emphasis added). He also suggests that subsection (b) is “most notable[,]” and he claims that it requires the court to consider the subsection (d) and subsection (e) factors— even when no petition in opposition is filed—if the parties cannot agree upon a visitation schedule, and therefore that the legislature must have also intended for the factors to be considered in every relocation case.
Again, as explained above, in construing a statute we must “ascertain and give effect to the legislative intent without unduly restricting or expanding the statute's coverage beyond its intended scope.” Hathaway v. First Family Fin. Servs., Inc., 1 S.W.3d 634, 640 (Tenn.1999) (citations omitted). To ascertain legislative intent, we must consider the natural and ordinary meaning of the statutory language within the context of the entire statute, avoiding a construction which would limit or expand its scope. See In re M.R.W., No. M2005–02329–COA–R3–PT, 2006 WL 1184010, at *2 (Tenn.Ct.App. May 3, 2006) (citing JJ & TK Corp. v. Bd. of Comm'rs, 149 S.W.3d 628, 630–31 (Tenn.Ct.App.2004) (citations omitted)).
This Court has previously been called upon to construe the term “shall.” In In re M.R.W., 2006 WL 1184010, at *2, we considered whether Tennessee Code Annotated section 36–1–113(k)–which provides that a trial court, following a parental termination hearing, “shall enter an order that makes specific findings of fact and conclusions of law within thirty (30) days”—required the vacation of a trial court order entered after thirty days. In ultimately determining that remand-as opposed to vacation—was required, we contrasted the decisions rendered in Garrett v. State, 717 S.W.2d 290 (Tenn.1986) and Kardoush, L.L.C. v. City of Memphis Alcohol Comm'n, No. W2005–00104–COA–R3–CV, 2005 WL 3017602, at *3 (Tenn.Ct.App. Nov. 9, 2005).
In Garrett, the Supreme Court considered the use of “shall” in Tennessee Code Annotated section 4–5–314(g), which concerned the forfeiture of property to the state. In re M.R.W., 2006 WL 1184010, at *2–3 (citing Garrett, 717 S.W.2d at 291). The statute provided:
A final order rendered pursuant to subsection (a) or initial order rendered pursuant to subsection (b) shall be rendered in writing within ninety (90) days after conclusion of the hearing or after submission of proposed findings in accordance with subsection (f) unless such period is waived or extended with the written consent of all parties or for good cause shown.
Id. at *3 (quoting Tenn.Code Ann. § 4–5–314(g) (emphasis added)). The Garrett Court concluded that the word “shall,” as used in subsection (g) was “directory,” and therefore, that the administrative law judge's failure to render an initial order upholding the property forfeiture until 112 days after the hearing was harmless error. Id. (citing Garrett, 717 S.W.2d at 291). In so concluding, the Court specifically noted that the legislative intent behind the ninety-day limit in section 4–5–314 was unclear. Id. (citing Garrett, 717 S.W.2d at 291).
In contrast, in Kardoush, this Court held that “shall” as used in Tennessee Code Annotated section 57–3–208(e) was “mandatory.” Id. In that case, we considered whether the Memphis Alcohol Commission lacked subject matter jurisdiction to act on a license application after the sixty-day period set out in section 57–3–208(e) had expired. Id. The statute provided in relevant part:
(e) A failure on the part of the issuing authority to grant or deny the certificate within sixty (60) days of the written application for such shall be deemed a granting of the certificate.
(f) The requirement imposed by this section to submit a certificate shall not be applicable to any applicant if:
(1) The authority of the county or municipality charged with the responsibility to issue the certificate required herein shall have failed to grant or deny the certificate within sixty (60) days after written application for such certificate is filed[.]”
Id. (citing Tenn.Code Ann. § 57–3–208(e), (f) (2002) (emphasis added)). In Kardoush, we noted that “[w]hen a statute uses the word ‘shall,’ it is generally construed as being mandatory as opposed to discretionary.... On the other hand, statutory provisions concerning the time frame in which an act must be done ordinarily are considered directory rather than mandatory.” Kardoush, 2005 WL 3017602, at *3 (citations omitted). However, we held that the legislature “clearly intended” “shall,” as used in section 57–3–208, to be mandatory because, unlike the statute construed in Garrett, section 57–3–208 provided a remedy for failure to act within the statutorily prescribed sixty-day period. In re M.R.W., 2006 WL 1184010, at *3 (citing Kardoush, 2005 WL 3017602, at *4);see also id. at *3 n. 2 (noting that the statute construed in Garrett prescribed no consequence for failure to adhere to the ninety-day period).
Like Kardoush, the statute under construction here provides a remedy for failure to comply with the thirty-day period for filing a petition in opposition to relocation; “[i]n the event no petition in opposition to a proposed relocation is filed within thirty (30) days of receipt of the notice, the parent proposing to relocate with the child shall be permitted to do so.” Tenn.Code Ann. § 36–6–108(g). This remedy specifically aligns with the statutory purposes of providing consistency in relocation proceedings and affording a presumption in favor of relocating parents who spend a greater amount of time with the child. See Lima, 2011 WL 3445961, at *3 (citations omitted). Accordingly, we conclude that the legislature intended the thirty-day opposition period to be mandatory, and where timely opposition is not rendered, the factors set forth in the statute are not implicated.
We are simply unpersuaded by Father's arguments that subsections (a), (b), and (d) of the statute necessitate a different conclusion. That subsections (a) and (d) state that a parent opposing relocation “may” file a petition in opposition does not render the thirty-day petition period “permissive;” the use of “may” simply reflects the obvious-that relocation will not be opposed in every case. Additionally, we find that subsection (b) does not render the thirty-day petition period “permissive” because it merely requires the court to consider “all relevant factors” when fashioning a visitation schedule—not in determining whether to permit relocation. Moreover, in light of the statute's requirement that an objecting parent file a “petition,” we reject the trial court's conclusion that the requirements of section 36–6–108 are satisfied by oral notification. Furthermore, finding no basis for invoking such restrictions and bearing in mind that the legislature was free to impose restrictions of its choosing, we reject the trial court's conclusion that the thirty-day period may be invoked only where non-invocation would result in harm or prejudice to the relocating parent.
Finally, we must note that our conclusions reached herein do not deprive a court from considering potentially harmful circumstances, as Father suggests. Section 36–6–108(g) expressly provides that “[n]othing in this section shall prohibit either parent from petitioning the court at any time to address issues, such as but not limited to, visitation, other than a change of custody related to the move.” Tenn.Code Ann. § 36–6–108(g). The requirement that a parent opposing relocation file a petition in opposition within thirty days of receipt of notice of the proposed relocation in no way ties the court's hands with respect to issues unrelated to the move.
In sum, we conclude that section 36–6–108 mandates that a parent wishing to oppose relocation file a petition in opposition within thirty days of receipt of notice of the proposed relocation. If no written petition in opposition is timely filed, the parent proposing to relocate with the child shall be permitted to do so, notwithstanding the absence of harm or prejudice to the relocating parent due to the untimely petition.
Because Father failed to file a written petition in opposition to Mother's proposed relocation within thirty days of receipt of her certified letter, we find the trial court erred in conducting any further analysis pursuant to section 36–6–108. The decision of the trial court is reversed, and Mother is permitted to relocate to Omaha, Nebraska, with the minor child. Father's request for appellate attorney fees is denied, and all remaining issues are deemed pretermitted.
Father briefly argues in his appellate brief that automatically allowing relocation when no timely petition in opposition is filed deprives him of his right to due process. He mistakenly contends that allowing relocation when no petition in opposition is filed automatically results in a change of custody to the relocating parent and/or decreased parenting time with the non-relocating parent. As stated above, when no petition in opposition is filed, the parent is simply allowed to relocate; if a visitation schedule cannot be agreed upon, “all relevant factors” are then considered in fashioning a visitation schedule. In any event, we find that Father has waived consideration of the due process issue by failing to include such in his statement of the issues. Tenn. R.App. P. 13(b) ( “Review generally will extend only to those issues presented for review.”).
V. Conclusion
For the aforementioned reasons, we reverse the decision of the circuit court, and we permit Mother to relocate to Omaha, Nebraska, with the minor child. Father's request for appellate attorney fees is denied, and all remaining issues are deemed pretermitted. Costs of this appeal are taxed to Appellee, Thomas Goodman Rutherford, for which execution may issue if necessary.
HOLLY M. KIRBY, concurring separately:
I have carefully considered Judge Stafford's energetic dissent in this case, and find that I cannot agree. I submit this separate concurrence to explain my position.
I note at the outset that the question of whether Father in this case actually filed a Rule 6.02 motion to enlarge time appears far from clear. However, assuming arguendo that he did, I would not apply Rule 6.02 to this case. For all of the dissent's in-depth discussion of Rule 6.02 and the concept of excusable neglect, it contains only passing reference to the language in Tennessee's parental relocation statute, and no discussion at all of whether application of Rule 6.02 squares with the express language, history, and legislative intent of the parental relocation statute. This is, I believe, a crucial oversight.
I agree with the majority opinion on the discussion of the plain language of Tennessee Code Annotated § 36–6–108, and its overall purpose.
The history and intent behind Section 36–6–108 are equally important to the decision in this case. Both are discussed at some length in this Court's opinion in Webster v. Webster, No. W2005–01288–COA–R3–CV, 2006 WL 3008019 (Tenn.Ct.App. Oct. 24, 2006).
In Webster, the Court noted first that, years ago in Tennessee, “the custodial parent had virtually unfettered authority to move the child away from the non-custodial parent, regardless of the reason or the effect on the child's relationship with the non-custodial parent.” Id. at *10 (citations omitted). As time went on, the value of involving both parents in child-rearing became more widely recognized. As there was no statute governing the issue, trial court decisions varied widely. The Tennessee Supreme Court, struggling with clarifying the law for trial courts and parents alike, issued a confusing series of decisions that sparked an increase in parental relocation cases and were “admittedly obscure.” Id. at *11.
In an effort to quell the confusion and settle the law, the Tennessee Supreme Court issued its decision in Aaby v. Strange, 924 S.W.2d 623 (Tenn.1996). The Aaby case set forth a framework for parental relocation cases, and stated expressly that its goals were to “(1) limit[ ] judicial intervention in post-divorce family decision-making, and (2) mak[e] disputes easier of resolution if they must be litigated.” Webster, 2006 WL 3008019, at *11 (quoting Aaby, 924 S.W.2d at 629). The standard adopted by the Aaby Court “made it quite difficult for a non-custodial parent to defeat the custodial parent's petition to relocate.” Id. at *12. Aaby also included a spirited dissent. Id. at *12–13.
In the wake of Aaby, Tennessee's legislature enacted a parental relocation statute that largely followed the Aaby framework but also incorporated some of elements advocated by the dissent. Id. at *13. Importantly for our purpose in this case, the Webster Court describes the structure of the parental relocation statute as “rigid,” designed to “facilitate[ ] the goals, reiterated in Aaby, of limiting judicial intervention and making disputes easier to resolve if they must be litigated.” Id. at *14.
Against this backdrop, we can see that applying Rule 6.02 to Section 36–6–108 to permit trial courts to enlarge the 30–day mandatory deadline set forth in the statute is inconsistent with the history and intent of Tennessee's parental relocation statute. Rather than leave the decision in parental relocation matters to trial courts, with widely varying approaches, results, and timelines, the legislature chose to enact a statute with a mandatory structure that drastically limits the trial court's discretion and compresses the timeline for resolution.
The reason for this is clear. Parental relocation cases are often prompted by a time-sensitive opportunity for the custodial parent, such as a job offer. If the parent opposing relocation is permitted to unduly delay, the opportunity for the custodial parent may be lost. The legislature made a policy decision to permit the non-custodial parent to file a petition opposing the relocation, but only within the “rigid” structure of the statute, to limit judicial intervention and get the case resolved quickly. Allowing a trial court to apply Rule 6.02 to enlarge the deadline for initiating the action opens the door for the exception that swallows the rule, and is counter to the history and intent of the parental relocation statute.
Parental relocation cases are frequently heartbreaking, with profound competing considerations and impact on both parents and the subject children. Delay does not improve them. The legislature has enacted a statute with explicit directions to the courts on the resolution of such cases, and we are required to follow the clear legislative directives in the statute.
Moreover, even if Rule 6.02 were applicable, which it is not, there are no circumstances in this case that would constitute excusable neglect. Mother's notice to Father informed him of the thirty day period to file a petition, as required under the statute. Whether he had a lawyer or not, Father knew about the 30–day deadline and simply missed it.
For all of these reasons, I concur with the majority's reversal of the trial court's decision.
J. STEVEN STAFFORD, J., Dissenting.
Based on the application of Rule 6.02 of the Tennessee Rules of Civil Procedure to the facts of this case, I must respectfully dissent from the majority. While the majority concludes that Father's petition is barred by his failure to timely file his petition in opposition to the relocation, I would instead remand to the trial court for specific findings of fact and conclusions of law on the issue of whether Father's delay in filing his petition was the result of excusable neglect.
From my review of the record, the relevant sequence of events is as follows:
• On January 3, 2011, Mother sends a certified letter notifying Father of her intent to relocate to Nebraska.
• January 4, 2011, Father undisputedly receives the notice.
• On February 6, 2011, thirty-three days after receiving the notice, Father files his petition in opposition to Mother's relocation (the thirtieth day after receipt of the notice fell on a Friday and Father filed the following Monday).
• On February 8, 2011, Mother files a petition to relocate stating that “Father has not filed any opposition to the move.”
• On approximately March 6, 2011, Mother relocates to Nebraska. It is undisputed that she did so one month after Father filed his petition in opposition to Mother's relocation.
• On March 9, 2011, Mother files an answer to Father's petition in opposition to the relocation; Mother raises no affirmative defenses, nor does she mention Father's failure to file his petition in opposition within thirty days of receiving the notice of her intent to relocate.
• On April 25, 2012, Mother files a Motion to Determine Status of Case pursuant to Tennessee Code Annotated Section 36–6–108(g). Mother seeks a declaration that because of Father's failure to file his petition in opposition within thirty days of receiving the notice, he cannot contest the move.
• On May 3, 2012, Father files a response to Mother's motion, arguing that: (1) Mother waived her argument regarding the applicability of Tennessee Code Annotated Section 36–6–108(g) by failing to raise specific averments regarding this issue in her answer; (2) Father's failure to file his petition in opposition within thirty days was excusable neglect and the trial court should enlarge the time allowed to respond.
• On June 4, 2012, the trial court denied Mother's motion to Determine Status of Case Pursuant to Tennessee Code Annotated Section 36–6–108(g), finding that “no proof of harm or prejudice to Mother result[ed] from the date [Father's] filing” was submitted and that Tennessee Code Annotated Section 36–6–108(g) should not bar Father's right to contest the move.
The majority concludes that the analysis in Kardoush, LLC v. City of Memphis Alcohol Com'n, No. W2005–00104–COA–R3–CV, 2005 WL 3017602 (Tenn.Ct.App.2005), necessitates a conclusion that Father no longer had a right to contest the relocation because he did not file his petition within thirty days of receiving Mother's intent to relocate. I do not disagree with the reasoning in Kardoush, nor do I contest that it properly applies to the time limit contained in Tennessee Code Annotated Section 36–6–108(g).
Instead, I would submit that this case presents a somewhat different factual situation than that presented in Kardoush. The Kardoush opinion makes absolutely no mention of any motion on the part of the Commission for an enlargement of time pursuant to Rule 6.02 of the Tennessee Rules of Civil Procedure. Rule 6.02 states:
When by statute or by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion, (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done, where the failure to act was the result of excusable neglect, but it may not extend the time for taking any action under Rules 50.02, 59.01, 59.03 or 59.04, except to the extent and under the conditions stated in those rules. This subsection shall not apply to the time provided in Tennessee Rule of Appellate Procedure 4(a) for filing a notice of appeal, nor to the time provided in Tennessee Rule of Appellate Procedure 24(b) & (c) for filing a transcript or statement of evidence.
Tenn. R. Civ. P. 6.02 (emphasis added). Rule 6.02, therefore, “grants the trial judge broad discretion to enlarge many of the procedural time limitations prescribed by the Rules of Civil Procedure.” Douglas v. Estate of Robertson, 876 S.W.2d 95, 97 (Tenn.1994). However, time limitations prescribed by rule are not the only time periods that may be enlarged by the trial court. The Tennessee Practice Series notes that our Rule 6.02 expands the power under the corresponding Federal Rule, which only allows expansion of time required or permitted by court rules or court order, “to include acts required or permitted by statute, including statutes of limitations.” Tenn. Prac. Series § 6.1 (3d ed.2000) (citing Fed.R.Civ.P. 6(a)). The Tennessee Rules of Civil Procedure are “promulgated by the Supreme Court and approved by [the Supreme Court] and approved by the General Assembly, pursuant to [the Supreme Court's] ‘inherent power to promulgate rules governing the practice and procedure of the courts of this state.’ ” Hall v. Haynes, 319 S.W.3d 564, 571 (Tenn.2010) (citing State v. Mallard, 40 S.W.3d 473, 481 (Tenn.2001)). These rules “have ‘the force and effect of law.’ ” Mid–South Pavers, Inc. v. Arnco Const., Inc., 771 S.W.2d 420 (Tenn.Ct.App.1989) (citing Tenn.Code Ann. § 16–3–406). Thus, Rule 6.02 confers broad authority and “flexibility to modify fixed time periods” contained in rules and statutes. Tenn. Prac. Series § 6.4 (3d ed.2000).
The time period at issue is contained in a statute, Tennessee Code Annotated Section 36–6–108(g), which states, in pertinent part: “In the event no petition in opposition to a proposed relocation is filed within thirty (30) days of receipt of the notice, the parent proposing to relocate with the child shall be permitted to do so.” Rule 6.02 contains specific exceptions for time periods that are not subject to enlargement. The time period contained in the parental relocation statute is not specifically excluded by Rule 6.02. In addition, my research has found no cases in which the time period in the parental relocation statute is excluded from enlargement pursuant to Rule 6.02. Because of the “broad authority” conferred by Rule 6.02, I must conclude that the trial court has discretion under Rule 6.02 to extend the time for filing a petition in opposition to a parent's relocation pursuant to Tennessee Code Annotated Section 36–6–108(g). Consequently, the dispositive question on appeal is whether enlargement pursuant to Rule 6.02 is appropriate given the particular circumstances of this case.
There is no dispute that Father failed to file anything in the trial court prior to the expiration of the thirty-day time period contained in the parental relocation statute. Consequently, he can only prevail in this case by showing that he filed a motion in the trial court seeking an enlargement of time and that his failure to timely file his petition in opposition was the result of excusable neglect. SeeTenn. R. Civ. P. 6.02(2) (allowing enlargement “upon motion made after the expiration of the specified period ... where the failure to act was the result of excusable neglect”). The first question, then, is whether Father filed a motion seeking an enlargement of time. From my review of the record, in his May 3, 2012 response to Mother's Motion to Determine Status of Case, Father specifically asks the trial court to grant an enlargement of time based on his excusable neglect. Father does not specifically cite Rule 6.02 and he raises the issue in a response to Mother's motion, rather than as an affirmative motion. However, “[c]ourts should give effect to the substance of motions rather than their form or title.” State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726 (Tenn.2013) (citing Brundage v. Cumberland Cnty., 357 S.W.3d 361, 371 (Tenn.2011)). In addition, even Mother, in her brief on appeal, characterizes Father's request as a Rule 6.02 Motion. Finally, this Court has recently construed a request for an enlargement of time contained in a response to a motion as an affirmative request pursuant to Rule 6.02. See Maness v. Garbes, No. M2008–00797–COA–R3–CV, 2009 WL 837707, at *2 (Tenn.Ct.App. Jan. 7, 2009). While Father has not specifically asserted, by name, the application of Rule 6.02, in either the trial court or his appellate brief, he did request an enlargement of time within days of Mother raising this issue in the trial court. A plain reading of Rule 6.02 indicates that it is intended to be broadly construed. See Douglas, 876 S.W.2d at 97 (noting that rule 6.02 confers upon the trial court “broad discretion” to enlarge time limits). Accordingly, I conclude that a fair reading of Father's May 3, 2012 filing is that Father was seeking an enlargement of time pursuant to Rule 6.02.
Thus, I would move on to consider the second prong of Rule 6.02 relief: whether Father has shown that his “failure to act was the result of excusable neglect.” Tenn. R. Civ. P. 6.02. Father asserted in his motion that: (1) he attempted to negotiate with Mother out of court prior to filing; (2) when it became clear that Father would need to seek court intervention, he was unable to immediately hire an attorney due to finances; (3) his attorney was unable to meet with him until the weekend preceding his February 6, 2011 filing; (4) although the filing was three days late, Monday, February 6, 2011, was the first business day after the expiration of time under Tennessee Code Annotated Section 36–6–108(g); and (5) Mother failed to raise the affirmative defenses of waiver or statute of limitations in her answer to his petition, operating as a waiver of those defenses under Rule 12.08 of the Tennessee Rules of Civil Procedure.
In addition, Father asserted that Mother was not prejudiced by the delay because: (1) she filed her petition to relocate after Father filed his petition in opposition; and (2) she did not move to Nebraska until one month after he filed his petition.
Mother's attorney, in his argument to the trial court on this issue, couched the issue as a “waiver” of Father's right to contest the relocation, stating, “I would argue that it's waived.” Waiver is specifically enumerated as an affirmative defense in Rule 8.03 of the Tennessee rules of Civil Procedure. Accordingly, it must be specifically raised in a responsive pleading, lest it be waived. SeeTenn. R. Civ. P. 12.08. Mother raised no affirmative defenses in her answer, nor did she argue that Father was barred from contesting the move by his failure to file his petition in opposition within thirty days of the receipt of Mother's letter. Instead, Mother did not raise this argument until over a year after filing her answer, on April 25, 2012.
The concept of excusable neglect is not peculiar to Tennessee law. Indeed, this Court, in State ex rel. Sizemore v. United Physicians Insurance Risk Retention Group, 56 S.W.3d 557 (Tenn.Ct.App.2001), relied on the analysis from the United States Supreme Court case of Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). This Court noted that the Pioneer case “set out the most authoritative exegesis of the excusable neglect concept,” and thus incorporated the United States Supreme Court's reasoning in its analysis. Sizemore, 56 S.W.3d at 566–67. As explained by this Court:
As the [United States Supreme Court] Court pointed out, a party's failure to meet a deadline may have causes ranging from forces beyond its control to forces within its control. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. at 387–88, 113 S.Ct. at 1494. The former will almost always substantiate a claim of excusable neglect; the latter will not. However, neglect extends to more than just acts beyond a party's control and intentional acts. It encompasses “simple, faultless omissions to act and, more commonly, omissions caused by carelessness.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. at 388, 113 S.Ct. at 1495. Thus, the excusable neglect concept may also apply to situations in which failure to comply with a filing deadline is attributable to a filer's negligence. Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. at 394, 113 S.Ct. at 1497;Marx v. Loral Corp., 87 F.3d 1049, 1054 (9th Cir.1996).
Still, not all negligence can be indulged. To do that would read out of the excusable neglect principle the requirement that the neglect must first be found excusable. Finding whether neglect is excusable is an equitable determination “taking account of all relevant circumstances surrounding the party's omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. at 395, 113 S.Ct. at 1498;Dubuc v. Green Oak Township, 958 F.Supp. 1231, 1241 (E.D.Mich.1997). The relevant circumstances envelop the big picture of both causes and effects, including (1) the danger of prejudice to the party opposing the late filing, (2) the length of the delay and its potential impact on proceedings, (3) the reason why the filing was late and whether that reason or reasons were within the filer's reasonable control, and (4) the filer's good or bad faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. at 395, 113 S.Ct. at 1498;In re SPR Corp., 45 F.3d 70, 72 (4th Cir.1995); In re Nunez, 196 B.R. 150, 157 (9th Cir. BAP 1996). These circumstances must be weighed both with and against each other because, if considered separately, they may not all point in the same direction in a particular case. In re Keene Corp., 188 B.R. 903, 909 (Bankr.S.D.N.Y.1995); In re Nickels Performance Sys., Inc., 169 B.R. 647, 651 (Bankr.E.D.Tenn.1994).
Sizemore, 56 S.W.3d at 567.
Thus, a finding of excusable neglect is the crux of a request for enlargement of time pursuant to Rule 6.02. We have recently discussed Rule 6.02's application in an estate matter, Dobbins v. Green, No. W2012–00460–COA–R3–CV, 2013 WL 1149574 (Tenn.Ct.App. Mar. 20, 2013), concluding that, because no excusable neglect was found by the trial court, the time for substitution of parties could not be enlarged. Similarly, in this case, the trial court likewise failed to make a specific finding as to whether Father's delay was the result of excusable neglect. Mother, in her brief, asserts that the trial court made a finding that “[t]here was no excusable neglect for Father not filing a timely Petition in Opposition in Relocation.” Mother cites to the transcript of the hearing on May 22, 2012; however, the trial court does not make any statement in the transcript as to whether there was excusable neglect on the part of Father. In fact, at the conclusion of the hearing on May 22, 2012, the trial court specifically stated that it could not determine whether there was excusable neglect without hearing testimony regarding Father's informal negotiations with Mother prior to filing his petition. In the later hearing and final order, however, the trial court also fails to make a specific finding as to excusable neglect, but does find that “Mother was put on notice that Father planned to oppose the move in court” during the parties' meeting after Father received Mother's letter, which fact the trial court had previously said was integral to a finding of excusable neglect.
In bench trials such as this, Rule 52.01 of the Tennessee Rules of Civil Procedure requires the trial court to make specific findings of fact and conclusions of law. Rule 52.01 provides, in pertinent part:
In all actions tried upon the facts without a jury, the court shall find the facts specially and shall state separately its conclusions of law and direct the entry of the appropriate judgment. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.
This Court has previously held that the General Assembly's decision to require findings of fact and conclusions of law is “not a mere technicality.” In re K.H., No. W2008–01144–COA–R3–PT, 2009 WL 1362314, at *8 (Tenn.Ct.App. May 15, 2009). Instead, the requirement serves the important purpose of “facilitat[ing] appellate review and promot[ing] the just and speedy resolution of appeals.” Id.; White v. Moody, 171 S.W.3d 187, 191 (Tenn.Ct.App.2004); Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn.Ct.App.1990). “Without such findings and conclusions, this court is left to wonder on what basis the court reached its ultimate decision.” In re K.H., 2009 WL 1362314, at *8 (quoting In re M.E.W., No. M2003–01739–COA–R3–PT, 2004 WL 865840, at *19 (Tenn.Ct.App. April 21, 2004)).
Because the trial court allowed the case to proceed despite Father's delay, the trial court, for all practical purposes, allowed the enlargement of time in Father's favor. “Rule 6.02 expressly states that the decision to grant or deny an enlargement of time due to excusable neglect is within the discretion of the trial court; therefore, our review of the trial court's decision is subject to the very deferential abuse of discretion standard, which does not permit this court to substitute its judgment for that of the trial court.” Maness v. Garbes, No. M2008–00797–COA–R3–CV, 2009 WL 837707, at *3 (Tenn.Ct.App. Mar. 26, 2009) (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001)). Without specific findings of fact and conclusions of law on the issue of Father's negligence, however, this Court is unable to discern whether the trial court based the enlargement of time on a finding that Father's neglect was excusable. Even though the procedure used by the trial court supports an implicit finding of excusable neglect, I do not believe an implicit finding comports with prevailing law. Whether Father's untimely petition in opposition to the relocation translates to a right to contest the move hinges on whether Father has shown excusable neglect for his delay in filing. This is the focal inquiry and should not be determined at either the trial or appellate level by implication. Instead, as required by Rule 52.01 of the Tennessee Rules of Civil Procedure, the facts should be found specifically along with the trial court's conclusions of law. This will not only enable the parties to understand the basis of the trial court's decision, but will also facilitate appellate review. Consequently, I would assert that an implicit finding of excusable neglect is insufficient in this case. Without a finding that Father's neglect was excusable, an enlargement of time pursuant to Rule 6.02 was inappropriate. Accordingly, I would submit that the proper disposition of this appeal is to remand to the trial court for specific findings of fact and conclusions of law on the issue of Father's excusable neglect. If Father's neglect was excusable, the trial court did not err in proceeding861to consider the substantive issues in Father's petition. If, on the other hand, Father's neglect was not excusable, I would concur in the majority's decision to dismiss Father's petition on timeliness grounds. I am cognizant that Mother raises an additional issue on appeal as to whether the trial court erred in its determination on the substantive issue in this case, i.e., whether Mother should be allowed to relocate with the child. As previously stated, however, a finding that Father's neglect was not excusable will result in dismissal of Father's petition in opposition to the relocation. Therefore, I am unable to consider the substantive issue in this case without first determining whether Father's petition should be considered timely based upon the language of Rule 6.02 of the Tennessee Rules of Civil Procedure.