# FILED

May 24, 1999
Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT JA CKSON

FOR PUBLICATION TODD FREDERICK BROOKS, ) Filed: May 24, 1999 ) Plaintiff/Appellant, ) SHELBY COU NTY ) 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 PER MISSION TO APPEAL DENIED, COURT OF APPEALS AFFIRMED. DROW OTA, J

.-2- In this child custody case, we granted the applica tion for extraordinary

appeal to consider whether the C ourt of Appeals erred by or dering 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 Febr uary 2, 1999, the Court of Appeals reversed this aspect of the trial cour t’s order and remanded the case to the trial court to enter an order designating the mother as the primary custodia n. The trial court entered an order on February 4, 1999, designatingthe mother as primary custod ian, which order

was to take effect immediately. On February 9, 1999, however, the tr ial court vacated the February 4 order and stated that no actions w ould be taken until mandate had been issued from the Court of Appeals or the Supre me Court. Contending that the trial court err ed in vacatin g the Febru ary 4 order, the mother filed
a Tenn. R. App. P. 10 applicat ion for e xt raordina ry appeal before the Court of Appeals. The Court of Appeals grante d this application on Februa ry 24, 1999, ordered the Clerk of theAppellate Court to issue mandate, and thereby di rected the trial co urt to enter an order chang ing custody to the mother.Accordingly, the t rial 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 appli cation, directed the parties to fil e briefs within ten day s, and ordered that

ora l argumentwould not take place. Tenn. R. App. P. 10(d). Thereafter, on Apr il 2, 1999, the father also filed a Tenn. R. App. P. 11 application for permiss ion to appeal in this Court, asking this Court to re vi ew the merits of the Court of Appe als’ February 2,-3-

1999 opinion. We have chosen to resolve th e 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 issui ng mandate before sixty-four days had passed from the Court of Appeals’ February 2, 1999 judgme nt or before a Tenn. R. App. P. 11 application for permission to appeal had been considered by this Court. Neverthel ess, beca use 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 Plai ntiff/Appellant Todd Frederick Brooks (“the Father”) filed a complaint against Defendant/Appel lee Linda Faye Carter ( “the Mother”) in Shelby County Ci rcuit Court, allegi ng abandonment and inap propriate marital conduct. The Mo ther counterclaimed for div orce on the grounds of inappropriatemartial conduct and irrec oncilable differences. Both parti es sought custody of their three minor childr en: Ashl eig h, born August 1989, Jared, born February1992, and Dylan, born Septem ber 1 995. In July 1996 the trial court appointed RitaRobinson , a Memph is attorn ey, to serve as guardian ad litem for the three children.
By virtue of a consent order entered in August 1996, both par ties cont inued to live in the marital home pending further orders of the court. A hearing was held
over nine sepa rate days in September and October 1996, after w hich the trial court entered a temporary custody or der. The trial court granted the parties joi nt custody pending the divorce proceedings. The Fathe r was designated as the primary-4-

custodial parent. The Father and the chil dren were to continue to live in the marital home. The Mother was granted visit ati on on Monday through Thursday of each week, b egin ning at 3:15 p.m., when the t wo older children fini shed school, and ending by 8:30 p.m. The order also g rante d the Mother visitation ev ery other weekend from 8:00 a.m. on Saturday until 10 :00 a.m. on Sunday. On the other weekends, the Mother was grant ed visitation on Sunday from 10:00 a.m. to 9:00 p.m.

In February

1997, the tri al court re lieved the guardian ad

litem of her d uties and appointed a Court Appointed Special Advocate (“ CASA”) to represent the interestsof the children. The trial court conducted a tr ial in July 1997. The Cour t of Appeals’ February 2, 1999 opinion, written by Judge Farmer, cogently di scusses the testimony presented during this trial:

In the present case, the evid ence revealed the following f acts, most of which were undisput ed. The F ather worked as an obstetrician-gynecologist and was affiliated w ith Methodist Central Hospital in Memphis. The Father also served as a clinical instru ctor at the University of Tennessee-Memphis. The Father participated in a nineteen-physiciancall group. On weekdays, the Father genera lly le

ft the house at 7:00 a.m. and did not return unti l about 6:00 o r 6:30 p.m. The Father's job requir ed him to be on c all for his own patients from 7:00 a.m. to 5:00 p.m. during the wor k week. In addition, tw

o or three times per month, the Father was r equired to be on call to treat the p atients of the other physicians in his group. On these occasio ns , another adult besidesthe Father was requi red to stay with the children in the marital home because, at any moment, the Father could be called to the hosp ital to de liver a bab y. In contrast, the Mother

had a more flexible work schedule which enabled her to spend a greater po rtion o f her time with the childr en. The Mother, who had an MBA deg ree from the University of Memphis, worked part-time in the personnel department at Feder al 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 sch ool every afternoon at 3:15 p.m. The Mother also transported the children t o extracurricular activiti es in t he-5- afternoon, such as piano, gymnasti cs, 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 hi m from Tu es day throu gh Friday. T he Mother also cared for the youngest child on Saturday while th e Father spent time with th e 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. T h e Mother testified that

she breast-fed all three chil dren and stay ed home with the m during the first six months of their lives. Acc ording 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, th e Father t estifie d that he awa kened the children, fed them breakfast, helped th em dre ss, and transported them to schoo l each weekd aymorning. The Father also tes tified that, the majority of the time, he was the parent w ho bathed the children and put them to bed at night. Despite the Father's claims to be the children's primary c aregiver, the overwhelming w eight of the testimony suppor ted the conclusion that the Mother consistently fulfilled this role throug hout the parties' marriage. In his own testimony, for example , the Father acknowledgedthat the Mother was the parentprimarily responsi ble for ensuring that the children's health-care needs were met. As a general rule, the Mother transported the c hi ldren to the pediatrician's office, used the children's insurance prescription card to get their prescri ptions f i lled, administered the children's medications, and cared for the children when they became i ll. Most of the time, the Mother w as the parentwho sta

yed home

fr o m work when the chil dren 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 chi ld was born with a large birthmark on the side of his face, which w as described by the

parties and doctors as a giant pigmented nevus. The child had undergone sever al surger i es to correct this condition, and at least two more surgeries

would be required in the future. The Mother's testimony was uncontr adicted that she was the parent who l argely was responsib le for the child's care aftereach surgery. The Mothe r explained that

this care required that a piece of s i licone be placed on the child 's face a nd secure d by a protecti ve cap. The Mother exp ressed concern over the child's care while he w as i n the Father's custody bec ause, on several occasi ons when she picked up the child for schedul ed visitation, either he wasnot wearing the protective cap or the nanny had not placed the silicone on his face correctly.-6- In addition to ensuring that the children's medical needs wer e met, the M otheralso played a more active role than did the Father in ensuring that their educational needs w ere m et. The Father acknowledgedthat the Mother had more contact with the children's teachers than h e did, a fact which was confirmed by one of the children's teachers. The Mother serv ed as a room mother at school and attended almost all of the children's school parties. A

ccording to the same teacher, t he Mothe r inquired as to the chi ld's progress on a regular basis, whereas the Father nev er 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 part ie s' home where she presented additional educational materials t o the chi ldren and that the Mother had taug ht sign language to the par ties' oldest child. In addition to the foregoing r esponsibilities, the Fath er acknowledgedthat the Mother hadassumed most of theresponsibility forarranging andscheduling the children's extracurricular activities, as well as transporting them to thes e activi ties. The Mother enrolled the children i n su ch activities as piano lessons, gymnastics , and martial arts lessons. The Mother's work schedule enabled her to transport the children to th ese various activiti es on Mondays, Wednesdays, and Thursdays after school. Prior to entry of the temporary cus tody order, the Mother also assumed the responsibility o f paying thena nny and giving her instructions

concerni ng the dai ly c a re of the children. The Mother primarilywas responsible for combing and braiding the parties' daughter's hair. The Mo ther maintained photo albums and diar ies recording each child's development. She paid the household expenses from a joint account into whi ch t he Father d eposited a portion of his earnings. After the Father filed this div orce action, but prior to th e M other vacating the marital home pursuant to the temporary c ustod y order, the Mother slep t in a bedroom downstairs near the children's bedrooms while the Father slept in a room upstairs. After the trial court entered i ts temporary cus

tody o rder, the already notable conf licts between the parties became increasingly hosti le. Unfortunately, most of these incidents occurred when the partie s were exchanging custody of the children at the marital home. The Father

c laimed that the conflicts w ere caused by the Mother because she often insisted on entering the marital home and/or refused to leave the property w

hen 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 ch i ldren's pr esence in the

marital home somehow

gave her the right to enter the home. The Father also believed that the Mother hadattempted to interfere with his t elephone contact with the children w hen they were vis iting theMother because1 In a footnot e, the Court

of Appeals al so mentioned the fol lowing: 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 i n conduct that created cause for concern. Duri ng one fight when the Mother was preg nant wit h the parti es' youngest child, the Mother allege dly became so enraged that she t hreatened to "blow away " the Father . The Fatheradmitted that, i n response to t he Mother's sta tement, he ret rieved a gun f rom 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 h im. Hearing their pa rents fi ghting, the chil dren then wal ked into t he room, observed the gun, an d b ec ame upset. Accordi ng to the Mother , thi s altercation occurred l ate one evening aft

er the Father

had been drinki ng. In August 1994, t he Father was seri ously i njured in a car accident . The Father admitted that he caused the accident by falli ng asleep at the wheel, and he i ndicated thathe made a "big mistake" by drinking alcoholic bevera ges after staying u p unt il 4:00 a.m. the t

wo previous ni ghts. Al though the Fat her clai med that he now was m ore careful about his drinking, and that dri nking was not an i mportant part of his life, he acknowledged that he dra nk beer, wine , or whisk ey as o ften a s eve ry othe r day. -7- she often p rovi ded excus es for why the childr en could not speak to him. Nevertheless, the Fathe r acknowl ed ged that his own conduct and motives were less than exemplary. When a conflict at the mari tal home occurred, the Father routinely called the police in order to induce the Mother to leave the proper ty. The Father explained that he did not wantthe Mother in the marital home because she ke pt taking marital property out of the home. The Father acknowledged, however, that one of the items which the Mothe r al legedly "snuck and took" was a Mercedes Benz automobile tha t was titled in her name. Moreover, although in the past the Mother pri marily had been responsible for providing the children's medical care, the Father admitted scheduling the younge st child's most recent su rgery on a date that was "best" for the Father without regard forthe Mother's schedule. After the child's surgery, the Father refused to allow the Mother to care forthe child ei

ther in the ma rital home or in her own home. The Father was so adamant in his refusal that he e nlisted the aid of the police and hospital security to preve nt 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 car ed for by the nanny instead of the Mother. Finally, t h e Father admitted that he exace rbated some of the h ost ility between the parties by taking such actions as changing the locks on the marital homeon the day before the Mother w as required to move out, as well as placing a board imbedded w ith 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. 1Describing himsel f a s a "stress smoker,"the Father f urther acknowl edged that he som etim es s mo ked cigar ettes and d rank alcoh olic be vera ges while h e wa s alon e in his bedro om a t night.
2 The init ial 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 Appeal s noted in par ticul ar that th e Mother was the chi ldren’ s primary caregi ver and that her work schedule was more accommodating to the needs of the chi ldren. -8- The initial guardian ad l item, who testified at the hear ing on te mpor ary custody, testified during this tr ial that it was her opi nion th at the Fath er was more coopera tive than the Mother in terms of arrang ing visitation with the children. On the othe r hand, the CASA guardian testi fied that the children appeared to be clos er t o theirmother. She stated that, while the Father w as providing appropr

iate physical shelter for the children, the childr en were n o t receiving sufficient emotional and intellectual attention w

hile in the Father’s cus

tody.

After considering the testimony presented, the trial court enter ed a final divorce decree awarding the parties joint custody of their three children, designating the Father as the primary custodial parent, andawarding liberal visitati on to the Mother. 2

Both parties appealed this final divorc e decree to the Court of Appeals. On February2, 1999, the Court of Appeals entere d 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 agai nst the trial court’s award of primar y custody to the Father, 3 the Court of Appeals r everse d this aspect of the trial cour t’s order and
re man ded the case to the trial court “to enter an order granting the Mother primary4 Rule 10 of the Tennessee Rul es of Appell ate Procedure pr ovides as fol lows: (a) Original Appl ication for Extraordinary Appeal; Grounds. An extraordinary appeal may be sought on application and in the discretion of the appellate court alone of interl ocutory or

ders of a lower

court from which an ap pea l li es to the Supreme Court, Court of Appeal s or Court of Criminal Appeal s: (1) if the lower court has so f ar departed from the accep ted and usual course of judicial proceedings as to require imm ediate review, or (2) if necessary for complete determinat ion of th e action on appeal as otherwise provided i n these rul es. The appell ate court may i ssue whatever order is necessar

y to i mplement review under t his rul e.

-9- custody of the children, awarding liberal visitati on to the Father, re calculating the Father’s child support obligati on pursuant to the Child Suppor t Guideli nes, and setting forth the parties’ respective duties and responsib ili ties in this joint cust ody arrangement.”
Relyingon 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 immediate ly. Respo nding 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 custod y should be vacated and that the issues set forth in the opini ons of the C ourt of Appeals for remand should be hel d in abeyance until the mandate from the Cour t of Appeals or

SupremeCourt is received b y the Clerk of the Circuit Court.” Thereafter, the Mother filed an application f or extraordin a ry relief before the Court of Appeals in accor dance 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 th e trial court5 Although the parties h ave 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 grant ed by a majorit

y of the mem bers of a three judge panel. Although the Rules do not explicitly

specify the requisi

te number of votes requ ired fo r suc h app licatio ns to be gr ante d, Ru le 22( d) sp ecifie s tha t an a ppe al m a y notbe “dispos ed of” by a s ingle judge

. -10- 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 receivers hip act ions, and in actions that remov e a public officer as otherwise provid ed by law or that aw ard, change or otherwise affect th e custod y of a minor child, an interlocutory or final judgmentshall not be stayed after entr y unless otherwis

e or d ered by the court a nd upon such t erms as to bon d or otherw ise as it deems proper to secure the other par ty. Therefore, the Court of Appeals directed theClerk of the Appellate Court s to issue mandate. Accordingly, mandate was issued on February 24, 1999, ordering the trial court to immediately com p ly with the Februar y 2, 1999 judgment of the Court of Appeals

. As a result, the trial court entered an order on Febr uary 26, 199 9 , designating the Mother as primary custodian.

On March 11, 1999, the Father fil ed an application for extraordinary appeal before this Court pursuant to Tenn. R. App. P. 10. In his appli cation, the Father asserted that t he Court of Appeals erred by issuing its Februar

y 24, 1999 order without providing him with an opportunity to file a response to th e Mot her’s application. The Father requested that this Court vacate the F

ebruary 24, 1999

order rendered by the Court of Appeals. We granted the Father’s application for extraordinaryreview on March 29, 1999, directed that briefs be filed within ten days, and disallowed oral arg ument. Thereafter, on April 8, 1999, the Father filed a Tenn. R. App. P. 11 application for permission to appeal befo re this Court, seeking rev iew-11-

of the merits o f the Court of Appeals’ February 2, 1999 decision, which named the Mother as primary cus

todian.

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 Rul es of Appellate Procedure provides, in pertinent part, as follows:

(a) Definiti on ; Issuance; Sta y on Petition fo r Rehearing. C opies, certified by the clerk of the appel late court, of the judgment, statementof costs, any order as tocosts or instructions as to interest, and a copy of the opinion of the appellat e 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 Cou rt of Appeals orCourt of Criminal Appeals, with notice to the parti es, 64 days after entry of judgment unless the court orders o therwise . The timelyfiling 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) S tay Whe n Review by Supreme Court Is Sought. Unless otherwise ordered by the Supreme Cour t, Court of App eals, Cou rt of Criminal Appeals, or a judge thereof, the timely filing of an appli cation forpermission to appeal in the Supreme Court shall stay the issuance of the mandate of the Court of Appea ls or Court of Criminal Appeals, which stay is effec

tive until final dispos ition by the Supreme Court

. Upon the filing of an order of the Supreme Court de nyin g the application for permission to appeal, the mandate shall issue immedia tely. The clear

intent of this sixty-

four day period is to all ow the parties six ty days to file an application for permission to appeal to the Tennessee Supreme Court, see Tenn. R.-12-

App. P. 11, as well as to provi de 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. Ap p. 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 o f Appeals directed that mand ate shall i ssue before the sixty-four day period had elapsed. The Court of Appeals apparently interpreted Rul e 62. 01 of the Tennessee Rules of Civil Procedure as a device designed to circumvent the applic ation of Tenn. R. App. P. 42 for certain cases. As mentioned above, Tenn. R. Civ. P. 62.01 provides, in pertinent part, as f ollows: [I]n actions that . . . awar d, change or otherwis

e affect the custody of a minor child, an interlocutory or final judgment shall not be stayed after entryunless otherwise orde red 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 tr ial courts and do not control appel late court procedure. SeeTenn. R. Civ. P. 1

. Rule 62.01 of the Tennessee Rules of Civil Procedure appl ies 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 deci sion will not ordinari ly be stayed pending appeal. Tenn. R. Civ. P. 62.01. This rule, howev er, is inapplicable in cases in which an appellat e6 Rule 42(a) of th e Ten nesse e Rules of Appe llate Proce dure pro vides tha t man date shall i ssue after the sixt

y-four da

y peri od “ unless the cour t orders ot herwise .” (Em pha sis added ). W e acknowledge thatthe rule is designed to enable t he Court of Appeal s to direct the immediate issuance of mandate if the context warra nts such an ord er. For i nstance, i f a chil d custody case i nvolves a situation in which the Court of Appeal s reasonably believe d that a chi ld would be i n danger in t he event thatthe p aren t awa rded cus tody b y the tria l cour t retain ed cu stod y while the issuance of mandate was stayed pursuant to Ten n. R. App. P. 42, the Court of Appeals may justifiabl y dire ct that mandate be imm ediat ely issued. I n the present case, however, no risk of danger was a lleged and the Court of App eals did not ev

en provide the Father w ith an opp ortunity to resp ond to the Mother’ s Tenn. R. App. P. 10 appli cation. -13- court has “award[ed], change[ d] or otherwise affect[ed] the cus tody of a minor

child.” Id.

Furthermore, we believe that a contraryinterpretation may detrimentally affect the welfare of a minor child. For inst ance, if a trial court awards custody of a minor child to her mother , and lat er that the Court of Appeals reverses the trial court’s decision and awards custody to the father and orders the immediate is suance of mandate, and th e Supreme Court grants a Tenn. R. App . P. 11 application filed by the mother and reverses the C ourt of Appeals’ decision, cus tody of the ch ild will have changed from the mother, to the father, and ultim ately backto the mother. Such a chain of events would li kely be harmful to the wel fare of the child.

While not expressly prohi bited 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 permiss ion to appeal, the issua nce of m andate s hould ha ve been stayed pending final dis positi on by this Court. Tenn. R. App. P. 42(b). Nevertheless, after revie wing the Father’s Tenn. R. App. P. 11 application for permission to appeal, the record, and the Court of Appeals’ well-crafted Februar y 2, 1999 opinion, we believe that the Father has failed to demonstrate r equisitecriteria-14-

forreview of the merits of this case by this Cour t and, thu s, we decline to exercise review. See Tenn. R. App. P. 11(a).

CONCLUSION In sum, we reve r se the February 24, 1999 action of the Court of Appea ls directing that mandate shall issue. How ever, the Father’s Tenn. R . App. P. 11 application for permission to appeal is he reby 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, II I, Justice

CONCUR: Anderson, C.J. Birch, Holder, Barker, J.J.