FILED

May 24, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

FOR PUBLICATION

TODD FREDERICK BROOKS, ) Filed: May 24, 1999

)

Plaintiff/Appellant, ) SHELBY COUNTY

)

v. ) Hon. Karen R. Williams

) Judge

LINDA FAYE CARTER, )

) No. 02S01-9903-CV-00023

Defendant/Appellee. )

FOR APPELLANT FOR APPELLEE

The Hardison Law Firm Rita L. Stotts

Robert L. J. Spence, Jr. Viola E. Johnson

Memphis, TN Memphis, TN 

OPINION

RULE 10 APPLICATION FOR EXTRAORDINARY APPEAL GRANTED,

COURT OF APPEALS REVERSED.

RULE 11 APPLICATION FOR PERMISSION TO APPEAL DENIED, 

COURT OF APPEALS AFFIRMED. DROWOTA, J.
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In this child custody case, we granted the application for extraordinary appeal

to consider whether the Court of Appeals erred by ordering that mandate issue before

the time period set forth by Tenn. R. App. P. 42 had expired.

As part of a final divorce decree, the trial court awarded primary custody of the

parties’ three minor children to the father. On February 2, 1999, the Court of Appeals

reversed this aspect of the trial court’s order and remanded the case to the trial court

to enter an order designating the mother as the primary custodian. The trial court

entered an order on February 4, 1999, designating the mother as primary custodian,

which order was to take effect immediately. On February 9, 1999, however, the trial

court vacated the February 4 order and stated that no actions would be taken until

mandate had been issued from the Court of Appeals or the Supreme Court.

Contending that the trial court erred in vacating the February 4 order, the mother filed

a Tenn. R. App. P. 10 application for extraordinary appeal before the Court of

Appeals. The Court of Appeals granted this application on February 24, 1999,

ordered the Clerk of the Appellate Court to issue mandate, and thereby directed the

trial court to enter an order changing custody to the mother. Accordingly, the trial

court entered an order on February 26, 1999, awarding custody of the children to the

mother, and the father proceeded to file an application for extraordinary appeal

before this Court on March 11, 1999. On March 29, 1999, we granted the father’s

application, directed the parties to file briefs within ten days, and ordered that oral

argument would not take place. Tenn. R. App. P. 10(d). Thereafter, on April 2, 1999,

the father also filed a Tenn. R. App. P. 11 application for permission to appeal in this

Court, asking this Court to review the merits of the Court of Appeals’ February 2,
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1999 opinion. We have chosen to resolve the Tenn. R. App. P. 10 and Tenn. R. App.

P. 11 applications in this single opinion.

We find that the Court of Appeals erred in issuing mandate before sixty-four

days had passed from the Court of Appeals’ February 2, 1999 judgment or before a

Tenn. R. App. P. 11 application for permission to appeal had been considered by this

Court. Nevertheless, because we deny the father’s Tenn. R. App. P. 11 application

for permission to appeal, the mother shall retain primary custody of the children.

PROCEDURAL HISTORY

This case began in June 1996 when Plaintiff/Appellant Todd Frederick Brooks

(“the Father”) filed a complaint against Defendant/Appellee Linda Faye Carter (“the

Mother”) in Shelby County Circuit Court, alleging abandonment and inappropriate

marital conduct. The Mother counterclaimed for divorce on the grounds of

inappropriate martial conduct and irreconcilable differences. Both parties sought

custody of their three minor children: Ashleigh, born August 1989, Jared, born

February 1992, and Dylan, born September 1995. In July 1996 the trial court

appointed Rita Robinson, a Memphis attorney, to serve as guardian ad litem for the

three children.

By virtue of a consent order entered in August 1996, both parties continued

to live in the marital home pending further orders of the court. A hearing was held

over nine separate days in September and October 1996, after which the trial court

entered a temporary custody order. The trial court granted the parties joint custody

pending the divorce proceedings. The Father was designated as the primary
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custodial parent. The Father and the children were to continue to live in the marital

home. The Mother was granted visitation on Monday through Thursday of each

week, beginning at 3:15 p.m., when the two older children finished school, and

ending by 8:30 p.m. The order also granted the Mother visitation every other

weekend from 8:00 a.m. on Saturday until 10:00 a.m. on Sunday. On the other

weekends, the Mother was granted visitation on Sunday from 10:00 a.m. to 9:00 p.m.

In February 1997, the trial court relieved the guardian ad litem of her duties

and appointed a Court Appointed Special Advocate (“CASA”) to represent the

interests of the children. The trial court conducted a trial in July 1997. The Court of

Appeals’ February 2, 1999 opinion, written by Judge Farmer, cogently discusses the

testimony presented during this trial:

In the present case, the evidence revealed the following facts,

most of which were undisputed. The Father worked as an

obstetrician-gynecologist and was affiliated with Methodist Central

Hospital in Memphis. The Father also served as a clinical instructor at

the University of Tennessee-Memphis. The Father participated in a

nineteen-physician call group. On weekdays, the Father generally left

the house at 7:00 a.m. and did not return until about 6:00 or 6:30 p.m.

The Father's job required him to be on call for his own patients from

7:00 a.m. to 5:00 p.m. during the work week. In addition, two or three

times per month, the Father was required to be on call to treat the

patients of the other physicians in his group. On these occasions,

another adult besides the Father was required to stay with the children

in the marital home because, at any moment, the Father could be

called to the hospital to deliver a baby.

In contrast, the Mother had a more flexible work schedule which

enabled her to spend a greater portion of her time with the children.

The Mother, who had an MBA degree from the University of Memphis,

worked part-time in the personnel department at Federal Express. She

worked three days per week, Tuesday, Wednesday, and Friday. The

Mother was able to arrange her work schedule so that she could pick

up the children from school every afternoon at 3:15 p.m. The Mother

also transported the children to extracurricular activities in the
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afternoon, such as piano, gymnastics, and martial arts lessons, and

she provided the children with their evening meal. During the marriage,

the parties hired a nanny to watch their youngest child during the work

week. During most weeks, the Mother cared for the youngest child on

Monday, and the nanny cared for him from Tuesday through Friday.

The Mother also cared for the youngest child on Saturday while the

Father spent time with the two older children.

At the temporary custody hearing and, later, at the final divorce

trial, both parties claimed to be the children's primary caregiver. The

Mother testified that she breast-fed all three children and stayed home

with them during the first six months of their lives. According to the

Mother, she also helped the children prepare for school in the morning

and made sure that they were properly dressed and groomed. On the

other hand, the Father testified that he awakened the children, fed

them breakfast, helped them dress, and transported them to school

each weekday morning. The Father also testified that, the majority of

the time, he was the parent who bathed the children and put them to

bed at night.

Despite the Father's claims to be the children's primary

caregiver, the overwhelming weight of the testimony supported the

conclusion that the Mother consistently fulfilled this role throughout the

parties' marriage. In his own testimony, for example, the Father

acknowledged that the Mother was the parent primarily responsible for

ensuring that the children's health-care needs were met. As a general

rule, the Mother transported the children to the pediatrician's office,

used the children's insurance prescription card to get their prescriptions

filled, administered the children's medications, and cared for the

children when they became ill. Most of the time, the Mother was the

parent who stayed home from work when the children were ill. The

Mother also was the parent who took the children to the dentist's office

for checkups every six months.

The parties' youngest child was born with a large birthmark on

the side of his face, which was described by the parties and doctors as

a giant pigmented nevus. The child had undergone several surgeries

to correct this condition, and at least two more surgeries would be

required in the future. The Mother's testimony was uncontradicted that

she was the parent who largely was responsible for the child's care

after each surgery. The Mother explained that this care required that a

piece of silicone be placed on the child's face and secured by a

protective cap. The Mother expressed concern over the child's care

while he was in the Father's custody because, on several occasions

when she picked up the child for scheduled visitation, either he was not

wearing the protective cap or the nanny had not placed the silicone on

his face correctly.
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In addition to ensuring that the children's medical needs were

met, the Mother also played a more active role than did the Father in

ensuring that their educational needs were met. The Father

acknowledged that the Mother had more contact with the children's

teachers than he did, a fact which was confirmed by one of the

children's teachers. The Mother served as a room mother at school and

attended almost all of the children's school parties. According to the

same teacher, the Mother inquired as to the child's progress on a

regular basis, whereas the Father never had consulted the teacher on

this matter. In fact, the teacher did not remember ever having spoken

to the Father. The Father further acknowledged that the Mother set up

a special room in the parties' home where she presented additional

educational materials to the children and that the Mother had taught

sign language to the parties' oldest child.

In addition to the foregoing responsibilities, the Father

acknowledged that the Mother had assumed most of the responsibility

for arranging and scheduling the children's extracurricular activities, as

well as transporting them to these activities. The Mother enrolled the

children in such activities as piano lessons, gymnastics, and martial

arts lessons. The Mother's work schedule enabled her to transport the

children to these various activities on Mondays, Wednesdays, and

Thursdays after school.

Prior to entry of the temporary custody order, the Mother also

assumed the responsibility of paying the nanny and giving her

instructions concerning the daily care of the children. The Mother

primarily was responsible for combing and braiding the parties'

daughter's hair. The Mother maintained photo albums and diaries

recording each child's development. She paid the household expenses

from a joint account into which the Father deposited a portion of his

earnings. After the Father filed this divorce action, but prior to the

Mother vacating the marital home pursuant to the temporary custody

order, the Mother slept in a bedroom downstairs near the children's

bedrooms while the Father slept in a room upstairs.

After the trial court entered its temporary custody order, the

already notable conflicts between the parties became increasingly

hostile. Unfortunately, most of these incidents occurred when the

parties were exchanging custody of the children at the marital home.

The Father claimed that the conflicts were caused by the Mother

because she often insisted on entering the marital home and/or refused

to leave the property when asked to do so. These allegations appeared

to have some merit because, in her testimony at the final divorce trial,

the Mother insisted that her children's presence in the marital home

somehow gave her the right to enter the home. The Father also

believed that the Mother had attempted to interfere with his telephone

contact with the children when they were visiting the Mother because
1

In a footnote, the Court of Appeals also mentioned the following:

In addition to his mo re recen t condu ct, the Fath er also ad mitted th at, prior to

the parties' separation, he engaged in conduct that created cause for concern. During

one fight when the Mother was pregnant with the parties' youngest child, the Mother

allege dly became so enraged that she threatened to "blow away" the Father. The

Father admitted that, in response to the Mother's statement, he retrieved a gun from

her closet, droppe d it on a cha ir or sofa n ext to her, a nd ch alleng ed he r to sh oot him.

Hearing their parents fighting, the children then walked into the room, observed the

gun, and became upset. According to the Mother, this altercation occurred late one

evening after the Father had been drinking.

In August 1994, the Father was seriously injured in a car accident. The Father

admitted that he caused the accident by falling asleep at the wheel, and he indicated

that he made a "big mistake" by drinking alcoholic beverages after staying u p until

4:00 a.m. the two previous nights. Although the Father claimed that he now was m ore

careful about his drinking, and that drinking was not an important part of his life, he

acknowledged that he drank beer, wine, or whiskey as o ften a s eve ry othe r day.

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she often provided excuses for why the children could not speak to

him.

Nevertheless, the Father acknowledged that his own conduct

and motives were less than exemplary. When a conflict at the marital

home occurred, the Father routinely called the police in order to induce

the Mother to leave the property. The Father explained that he did not

want the Mother in the marital home because she kept taking marital

property out of the home. The Father acknowledged, however, that one

of the items which the Mother allegedly "snuck and took" was a

Mercedes Benz automobile that was titled in her name.

Moreover, although in the past the Mother primarily had been

responsible for providing the children's medical care, the Father

admitted scheduling the youngest child's most recent surgery on a date

that was "best" for the Father without regard for the Mother's schedule.

After the child's surgery, the Father refused to allow the Mother to care

for the child either in the marital home or in her own home. The Father

was so adamant in his refusal that he enlisted the aid of the police and

hospital security to prevent the Mother from caring for the child or

taking the child home with her. The Father was on call that night, so his

refusal resulted in the child being cared for by the nanny instead of the

Mother.

Finally, the Father admitted that he exacerbated some of the

hostility between the parties by taking such actions as changing the

locks on the marital home on the day before the Mother was required

to move out, as well as placing a board imbedded with nails in the

driveway so that the Mother's car would get a flat tire. The Father went

so far as to wrap plastic around the board so that it would resemble a

newspaper.1
Describing himself as a "stress smoker," the Father further acknowledged that he

som etim es smo ked cigar ettes and d rank alcoh olic be vera ges while h e was alon e in

his bedro om a t night.

2

The initial visitation schedule pursuant to the temporary custody order was modified, and the

Mothe r argued that the trial cou rt’s final divorce decree reduce d her visitation privileges. 

3

The Court of Appeals noted in particular that the Mother was the children’s primary caregiver

and that her work schedule was more accommodating to the needs of the children.

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The initial guardian ad litem, who testified at the hearing on temporary

custody, testified during this trial that it was her opinion that the Father was more

cooperative than the Mother in terms of arranging visitation with the children. On the

other hand, the CASA guardian testified that the children appeared to be closer to

their mother. She stated that, while the Father was providing appropriate physical

shelter for the children, the children were not receiving sufficient emotional and

intellectual attention while in the Father’s custody. 

After considering the testimony presented, the trial court entered a final

divorce decree awarding the parties joint custody of their three children, designating

the Father as the primary custodial parent, and awarding liberal visitation to the

Mother.2

Both parties appealed this final divorce decree to the Court of Appeals. On

February 2, 1999, the Court of Appeals entered an order in which it affirmed in part,

reversed in part, modified in part, and remanded the case to the trial court. Finding

that the evidence preponderated against the trial court’s award of primary custody to

the Father,3 the Court of Appeals reversed this aspect of the trial court’s order and

remanded the case to the trial court “to enter an order granting the Mother primary
4Rule 10 of the Tennessee Rules of Appellate Procedure provides as follows:

(a) Original Application for Extraordinary Appeal; Grounds. An extraordinary

appeal may be sought on application and in the discretion of the appellate court alone

of interlocutory orders of a lower court from which an appea l lies to the Supreme

Court, Court of Appeals or Court of Criminal Appeals: (1) if the lower court has so far

departed from the accep ted and usual course of judicial proceedings as to require

imm ediate review, or (2) if necessary for complete determination of the action on

appeal as otherwise provided in these rules. The appellate court may issue whatever

order is necessary to implement review under this rule.

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custody of the children, awarding liberal visitation to the Father, recalculating the

Father’s child support obligation pursuant to the Child SupportGuidelines, and setting

forth the parties’ respective duties and responsibilities in this joint custody

arrangement.”

Relying on this decision and a motion filed by the Mother, the trial court

entered an order on February 4, 1999, designating the Mother as primary custodian

of the children effective immediately. Responding to an objection voiced by the

Father, the trial court entered an order on February 9, 1999, stating that “pursuant to

the Rules of Appellate Procedure, the Order that this Court entered on February 4,

1999 changing child custody should be vacated and that the issues set forth in the

opinions of the Court of Appeals for remand should be held in abeyance until the

mandate from the Court of Appeals or Supreme Court is received by the Clerk of the

Circuit Court.” Thereafter, the Mother filed an application for extraordinary relief

before the Court of Appeals in accordance with Tenn. R. App. P. 10.4

In an order entered February 24, 1999, the Court of Appeals, in an order

signed by one judge, granted the Mother’s application and found that the trial court
5Although the parties have not raised the issue, we believe tha t applications filed pursu ant to

Rules 9 and 10 of the Te nness ee Ru les of Ap pellate Procedure should be granted by a majority of the

mem bers of a three judge panel. Although the Rules do not explicitly specify the requisite number of

votes requ ired fo r suc h app lications to be gr ante d, Ru le 22( d) sp ecifie s that an appeal m ay not be

“dispos ed of” by a s ingle judge . 

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erred in vacating its February 4, 1999 order.5

 The Court of Appeals relied on Tenn.

R. Civ. P. 62.01, which provides, in part, as follows:

In injunction and receivership actions, and in actions that remove a

public officer as otherwise provided by law or that award, change or

otherwise affect the custody of a minor child, an interlocutory or final

judgment shall not be stayed after entry unless otherwise ordered by

the court and upon such terms as to bond or otherwise as it deems

proper to secure the other party. 

Therefore, the Court of Appeals directed the Clerk of the Appellate Courts to issue

mandate. Accordingly, mandate was issued on February 24, 1999, ordering the trial

court to immediately comply with the February 2, 1999 judgment of the Court of

Appeals. As a result, the trial court entered an order on February 26, 1999,

designating the Mother as primary custodian.

On March 11, 1999, the Father filed an application for extraordinary appeal

before this Court pursuant to Tenn. R. App. P. 10. In his application, the Father

asserted that the Court of Appeals erred by issuing its February 24, 1999 order

without providing him with an opportunity to file a response to the Mother’s

application. The Father requested that this Court vacate the February 24, 1999 order

rendered by the Court of Appeals. We granted the Father’s application for

extraordinary review on March 29, 1999, directed that briefs be filed within ten days,

and disallowed oral argument. Thereafter, on April 8, 1999, the Father filed a Tenn.

R. App. P. 11 application for permission to appeal before this Court, seeking review
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of the merits of the Court of Appeals’ February 2, 1999 decision, which named the

Mother as primary custodian. 

DISCUSSION

As stated earlier, in the interest of judicial efficiency, we find that it is prudent

to address the Tenn. R. App. P. 10 appeal as well as the Father’s Tenn. R. App. P.

11 application in this opinion. Rule 42 of the Tennessee Rules of Appellate

Procedure provides, in pertinent part, as follows:

(a) Definition; Issuance; Stay on Petition for Rehearing.

Copies, certified by the clerk of the appellate court, of the judgment,

statement of costs, any order as to costs or instructions as to interest,

and a copy of the opinion of the appellate court shall constitute the

mandate.

* * *

The clerk of the Court of Appeals and Court of Criminal Appeals

shall transmit to the clerk of the trial court the mandate of the Court of

Appeals or Court of Criminal Appeals, with notice to the parties, 64

days after entry of judgment unless the court orders otherwise. The

timely filing of a petition for rehearing will stay the mandate until

disposition of the petition unless the court orders otherwise. The

mandate shall issue 64 days after denial of the petition for rehearing or,

if the petition for rehearing is granted, 64 days after entry of judgment

on rehearing.

* * *

(b) Stay When Review by Supreme Court Is Sought. Unless

otherwise ordered by the Supreme Court, Court of Appeals, Court of

Criminal Appeals, or a judge thereof, the timely filing of an application

for permission to appeal in the Supreme Court shall stay the issuance

of the mandate of the Court of Appeals or Court of Criminal Appeals,

which stay is effective until final disposition by the Supreme Court.

Upon the filing of an order of the Supreme Court denying the

application for permission to appeal, the mandate shall issue

immediately.

The clear intent of this sixty-four day period is to allow the parties sixty days to file an

application for permission to appeal to the Tennessee Supreme Court, see Tenn. R.
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App. P. 11, as well as to provide a four-day “cushion” which enables the filing of the

application by registered mail. If no application for permission to appeal is filed within

this time frame, mandate shall issue. Tenn. R. App. P. 42(a). If, however, an

application for permission to appeal is timely filed, then the issuance of mandate is

stayed pending final disposition by the Supreme Court. Tenn. R. App. P. 42(b).

In the present case, the Court of Appeals directed that mandate shall issue

before the sixty-four day period had elapsed. The Court of Appeals apparently

interpreted Rule 62.01 of the Tennessee Rules of Civil Procedure as a device

designed to circumvent the application of Tenn. R. App. P. 42 for certain cases. As

mentioned above, Tenn. R. Civ. P. 62.01 provides, in pertinent part, as follows:

[I]n actions that . . . award, change or otherwise affect the custody of

a minor child, an interlocutory or final judgment shall not be stayed after

entry unless otherwise ordered by the court and upon such terms as to

bond or otherwise as it deems proper to secure the other party. 

We find, however, that this Rule applies to the trial courts of this state and was

not intended to supersede the sixty-four day period set forth in Tenn. R. App. P. 42.

First of all, the Tennessee Rules of Civil Procedure govern procedure in Tennessee

trial courts and do not control appellate court procedure. See Tenn. R. Civ. P. 1.

Rule 62.01 of the Tennessee Rules of Civil Procedure applies in situations in which

a trial court has rendered a custody decision. Thus, in situations in which a trial court

has “award[ed], change[d] or otherwise affect[ed] the custody of a minor child,” the

trial court’s custody decision will not ordinarily be stayed pending appeal. Tenn. R.

Civ. P. 62.01. This rule, however, is inapplicable in cases in which an appellate
6Rule 42(a) of th e Ten nesse e Rules of Appe llate Proce dure pro vides tha t man date shall issue

after the sixty-four day period “unless the court orders otherwise.” (Em pha sis added ). We

acknowledge that the rule is designed to enable the Court of Appeals to direct the immediate issuance

of mandate if the context warra nts such an order. For instance, if a child custody case involves a

situation in which the Court of Appeals reasonably believed that a child would be in danger in the event

that the paren t awa rded cus tody by the tria l court retain ed cu stod y while the issuance of mandate was

stayed pursuant to Tenn. R. App. P. 42, the Court of Appeals may justifiably direct that mandate be

imm ediately issued. In the present case, however, no risk of danger was alleged and the Court of

App eals did not even provide the Father w ith an opp ortunity to resp ond to the Mother’s Tenn. R. App.

P. 10 application.

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court has “award[ed], change[d] or otherwise affect[ed] the custody of a minor child.”

Id.

Furthermore, we believe that a contrary interpretation may detrimentally affect

the welfare of a minor child. For instance, if a trial court awards custody of a minor

child to her mother, and later that the Court of Appeals reverses the trial court’s

decision and awards custody to the father and orders the immediate issuance of

mandate, and the Supreme Court grants a Tenn. R. App. P. 11 application filed by

the mother and reverses the Court of Appeals’ decision, custody of the child will have

changed from the mother, to the father, and ultimately back to the mother. Such a

chain of events would likely be harmful to the welfare of the child.

While not expressly prohibited by Tenn. R. App. P. 42, we find that in a child

custody case, such as this, the Court of Appeals’ February 24, 1999 order directing

that mandate be issued was ill-advised.6 Because the Father timely filed a Tenn. R.

App. P. 11 application for permission to appeal, the issuance of mandate should have

been stayed pending final disposition by this Court. Tenn. R. App. P. 42(b).

Nevertheless, after reviewing the Father’s Tenn. R. App. P. 11 application for

permission to appeal, the record, and the Court of Appeals’ well-crafted February 2,

1999 opinion, we believe that the Father has failed to demonstrate requisite criteria
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for review of the merits of this case by this Court and, thus, we decline to exercise

review. See Tenn. R. App. P. 11(a).

CONCLUSION

In sum, we reverse the February 24, 1999 action of the Court of Appeals

directing that mandate shall issue. However, the Father’s Tenn. R. App. P. 11

application for permission to appeal is hereby denied. Mandate shall immediately be

issued in conformity with Tenn. R. App. P. 42(b). The result is that the Mother shall

remain primary custodian of the parties’ children.

Costs on appeal are taxed equally to both parties.

_____________________________________

Frank F. Drowota, III,

Justice

CONCUR:

Anderson, C.J.

Birch, Holder, Barker, J.J.