Phillip R. Robinson, Judge
Reports of Cases Reviewed by Appellate Courts – Beginning Jan. 1, 2022
Text is the appellate court’s summary of the opinion.
Scroll down for important information.
Corenswet v. Corenswet (Rain), No. M2023-00642-COA-R3-CV (Tenn. Ct. App. Feb. 7, 2024). This is an appeal from two orders entered by the trial court in this post-divorce action. In the first order, the trial court found the mother guilty on three counts of criminal contempt, upon a petition filed by the father, for scheduling and taking the parties’ minor child to two doctor’s appointments and a walk-in clinic in violation of the parties’ permanent parenting plan. The parenting plan granted to the father exclusive decision-making authority over all non-emergency medical decisions for the children. In the second order, the trial court sua sponte modified the parties’ parenting plan, granting the father “tie-breaking authority” to schedule non-school-related extracurricular activities during the mother’s co-parenting time on the condition that if the mother did not agree to a particular activity, the father would pay for and provide transportation to the activities. Neither party had filed a petition seeking to modify the parenting plan. The mother appeals this modification on the grounds that no material change in circumstance existed to justify modification of the parenting plan and argues further that the modification was not in the best interest of the children because it would likely create more disputes between the parties going forward. With regard to the criminal contempt determinations, the mother argues on appeal that her actions in scheduling the two doctor’s visits were not “willful” as required for a finding of criminal contempt and that her action in taking the child to the walk-in clinic was precipitated by a medical emergency, a situation over which the parenting plan did not grant the father exclusive control. Upon thorough review, we discern no reversible error in the trial court’s determination that the mother was guilty of three counts of criminal contempt for violating the permanent parenting plan and accordingly affirm that order in its entirety. Regarding the second order, we find as a threshold matter that the trial court did not have subject matter jurisdiction to modify the parties’ parenting plan in the absence of a petition to modify or motion for relief from judgment. Accordingly, we vacate the trial court’s order modifying the parties’ permanent parenting plan.
Smallman v. Smallman, No. M2022-00592-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2023). This is a post-divorce action in which both parents seek to modify the permanent parenting plan and the father seeks to reduce his financial support obligations. The mother filed her Petition to Modify Permanent Parenting Plan in which she requested, inter alia, a reduction of the father’s parenting time and that she be awarded sole decision-making authority for the non-emergency medical and educational decisions for the parties’ two minor children. The father filed his Counter-Petition to Modify the Parenting Plan seeking, inter alia, that he be awarded the tie-breaking vote for all medical decisions for the children; that joint decision-making authority for educational decisions be maintained between the parties; that his financial obligations be modified, including child support as well as previously agreed-upon additional educational and medical expenses; and that he be awarded more parenting time. Following a trial that spanned 10 days, the trial court found in a 53-page memorandum opinion and final order that neither party proved a material change of circumstance that justified modification of the parenting schedule. However, the court found the parents’ inability to successfully co-parent under the existing joint decision-making provision adversely affected the children’s non-emergency healthcare and educational needs. The court also found that it was in the children’s best interests that the “[m]other have sole decision-making authority over their non-emergency healthcare and day-to-day education, free of any interference or delays by the father and without being required to consult with him in advance.” The court denied the father’s request to modify child support as well as his request to modify responsibility for educational, medical, and extracurricular expenses. The father appeals. We affirm the trial court in all respects. We also find that the mother is entitled to recover the reasonable and necessary attorney’s fees and expenses she incurred in defending this appeal and remand this issue to the trial court to make the appropriate award.
Woodward v. Woodward, M2023-01298-COA-T10B-CV (Tenn. Ct. App. Nov. 7, 2023). In this ongoing divorce litigation, the father filed an interlocutory appeal from the trial court’s denial of his motions to recuse the trial judge. Having reviewed father’s petition under the required de novo standard, we affirm the trial court’s decision.
Gates v. Switzer, No. M2021-01552-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2023). During the pendency of a divorce, Wife was convicted of one count of criminal contempt. Wife filed a notice of appeal subsequent to this conviction. Before Wife’s initial appeal was heard, the trial court entered its order granting the parties a divorce. Wife filed another notice of appeal challenging the outcome of the divorce. We consolidated the respective appeals, and now, upon our review, we affirm the judgment of the trial court in both the contempt and divorce proceedings.
Sevigny v. Sevigny, No. M2022-00953-COA-R3-CV (Tenn. Ct. App. July 14, 2023). In this post-divorce dispute, the wife filed a petition for criminal contempt. After testimony was heard, the parties announced in broad terms that they had reached a settlement. Thereafter, the parties could not agree on the terms of the settlement. At a hearing on the husband’s motion requesting approval of his proposed order, the court dismissed the petition on grounds of double jeopardy. We have determined that the trial court erred in dismissing the case and remand for further proceedings.
Lee (Boyett) v. Boyett, No. M2022-00060-COA-R3-CV (Tenn. Ct. App. Apr. 28, 2023) (memorandum opinion). A father appealed an order requiring his children to receive the COVID-19 vaccine. While the appeal was pending, both children received the vaccine. Because we determine that the appeal is moot, we dismiss the appeal.
Javed v. Baig, M2022-00331-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2022) (memorandum opinion). This is an appeal from a final order of absolute divorce. The trial court granted the divorce based on a finding that both parties committed inappropriate marital conduct. The wife appeals. We dismiss the appeal.
Understanding the Limitations and Use of the Information Found in This Book
Tennessee’s trial judges resolve hundreds of thousands of legal and factual issues in tens of thousands of cases every single year. No appeal is filed in the vast percentage of those cases, indicating that while the “losing” party may not like a ruling on a particular issue, that party understands there was an appropriate reason for the judge’s decision or, at a minimum, the judge was acting within his or her discretion.
Of course, a small number of decisions of trial judges do result in an appeal. Experienced trial lawyers know that the number of cases appealed out of a particular trial judge’s court does not, in and of itself, reveal much about the trial judge. For example, some judges hear more complex cases than others, and those cases are more likely to be appealed. Convictions in child sex abuse cases are frequently appealed, as are many criminal cases resulting in long sentences. There are a large number of parental rights termination cases that find their way to the appellate courts. Judges who routinely try those types of cases will, other things being equal, see more of their cases reviewed by appellate courts than judges who do not see such cases.
Second, certain litigants (and certain lawyers) are more likely to appeal a case than others. Thus, judges who have those litigants or lawyers regularly appear in their courtrooms will find more cases reviewed by the appellate courts.
For these and other reasons, the reader is cautioned not to read too much into the number of cases appealed from a court. Stated differently, there is no reason to believe that a judge who has ten cases reviewed by an appellate court in a single year is a “worse” judge than one who has one case appealed, or that a judge who has three cases appealed is a “better” judge than one who has nine cases appealed.
Next, the number of times a judge’s ruling is reversed by an appellate court is not necessarily indicative of the quality of his or her work. For example, experienced lawyers know that there are “holes in the law,” i.e., cases where there is no law directly on point and the judge is forced to predict what an appellate court would rule on the issue. The fact that a judge decided an open legal issue one way and an appellate court decided it another way does not mean that the trial judge was “wrong” or does not understand the law. It simply means that the trial judge had a different view of what the law should be than the appellate court that decided the issue. A trial judge is not blessed with a crystal ball that can with 100 percent accuracy forecast how an appellate court will rule on an undecided legal issue.
In addition, the trial court is sometimes not provided with the same in-depth legal arguments and law that is supplied to the appellate court by the parties, or which is provided by law clerks at the appellate level (many trial courts do not have law clerks). The trial judge may have reached the same conclusion as the appellate court if he or she had been supplied with additional law or argument.
Finally, the law changes constantly, and the trial judge may rule on a case based on today’s law, which may evolve between the time of that ruling and the issuance of an opinion of the appellate court. In such cases, the reversal of the case by the appellate court is a question of timing of the original court decision as compared to changes in the law, not one of error by the trial court.
So, what is the value of this book? How can the trial lawyer use it to help his or her clients given the limitations expressed above? Permit me to digress slightly.
You have seen the coffee cups or t-shirts that proclaim, “A good lawyer knows the law, but a great lawyer knows the judge.”
Some read this phrase as suggesting that the “great lawyer” is one who has an improper relationship with the judge – that he or she can use a personal relationship to improperly influence the judge. But most lawyers know better. Most lawyers understand that “knowing the judge” means knowing the judge’s background, preferences concerning the presentation of evidence (including exhibits), arguments of motions, drafting of proposed orders, and given that experience, how he or she is likely to rule on a particular issue. “Knowing the judge” also means knowing the local rules, local forms, local customs, and what things irritate the judge (and every judge is irritated by at least one thing that lawyers or litigants may do).
Many lawyers, particularly those in more rural areas of the state or who limit their practice to one area of law, understand the personality and preferences of the judges they see on a regular basis. Many of these lawyers may have a fair advantage appearing before that judge. (The advantage is “fair” because it results from experience and knowledge.) That advantage – knowing how the judge thinks and his or her preferences – is not outcome-determinative, but it still may be an advantage, similar to a sports team playing on their home field.
Why did I say it “may” be an advantage, given what I said earlier about the benefits of “knowing the judge?” Because simply knowing the judge’s thought processes and preferences is not enough. You still need to have the law and the facts on your client’s side. And you need to be prepared to be able to give the judge what he or she needs to know to make a ruling.
So, the purpose of “The Book” is to give Tennessee lawyers case-related information to help them understand the trial judge who will rule on their client’s case or preside over a jury trial. By looking at past appellate court rulings arising from cases decided by the trial judge, anyone unfamiliar with a judge can get a “feel” for the judge. The case data contained herein does not compare with daily or weekly appearances in front of the judge on issues like a given case, but it is readily available information that give you an idea of how the judge has ruled in the past on a variety of matters.
The cases included are those originally decided by the trial judge that were in appellate court opinions released on or after January 1, 2022. Note that there are a substantial number of judges who first took office in 2022 and thus it is reasonable to assume that there will be no appellate decisions for such judges until late 2023 or 2024.
