1984 | Cited 0 times | Court of Appeals of Tennessee | October 10, 1984


This appeal arose from a decision in the Circuit Court of Davidson County on a petition to modify visitation privileges. The petition was filed by the father alleged circumstances based on a change in his residence. The mother counter petitioned for an increase in child support, and alleged contempt of the divorce decree which ordered provision of hospitalization and medical insurance. The Trial Court referred the matter to a Special Master for hearing on the issues advanced in the pleadings. The Special Master conducted a hearing and filed his report with the Trial Court on December 7, 1982.

On December 21, 1982 the father's attorney filed a motion to enlarge the time for filing, and filed objections to the Master's report. On January 5, 1983 the Trial Judge entered an order that confirmed the Special Master's report, increased the amount of child support, and granted changes in the father's visitation privileges. On January 19, 1983 the Trial Court entered an order that allowed the father's late objections and granted the mother's request for five additional days to file objections. After a hearing, the Trial Court on May 23, 1983, entered an order that altered the visitation provisions of the January 5, 1983 order.

On June 21, 1983 the mother filed a motion to alter or amend the order of May 23, 1983, but it appears that no hearing was ever held on this motion. On June 22, 1983 the Trial Judge entered an amended order, but apparently did not take the mother's motion into consideration. The mother filed her notice of appeal on July 22, 1983, but this court remanded for final action on the motion to alter or amend. By order of January 17, 1984 the Trial Judge struck the motion of June 21, making the order of June 22 final. From the order of June 22, 1983 the mother has again appealed.

Appellant first contends that the Trial Judge erred in allowing the defendant to file objections to the Special Master's report after the ten day period for filing such objections had expired. Tennessee Rule of Civil Procedure 53.04(2) sets out the method for objecting to a master's report. This section states in pertinent part: "Within ten (10) days after being served with notice of the filing of the report, any party may serve written objections thereto upon the other parties." Tenn.R.Civ.P. 53.04(2) (1981). The ten day period is not, however, set in stone. Rule 6.02 permits a court in its discretion to allow additional time for the performance of an act required by the rules. The portion of Rule 6.02 applicable in this case states:

(2) upon motion made after the expiration of the specified period [a court may] 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.

Tenn.R.Civ.P. 6.02(2) (1981).

The record in this case indicates that the defendant's objections were served three days after the expiration of the ten day period if the three day period for service by mail is taken into account. Thus, unless the time for filing objections was enlarged pursuant to motion under Rule 6.02(2), consideration of the objections by the Trial Judge would have been improper. The defendant, however, filed a motion to enlarge along with his objections. Accompanying this motion was an affidavit in which the defendant's attorney stated that because of a heavy case load, including court appearances, he was unable to contact the defendant and learn that he wished to object to the report. The appellant contends that this does not constitute "excusable neglect" as the term is used in Rule 6.02 and that, therefore, the enlargement was improperly granted.

In support of this proposition she cites two federal cases in which she believes that preoccupation with other business was rejected as a ground for "excusable neglect." The first of the cases, Citizens' Protective League v. Clark, 178 F.2d 703 (D.C. Cir. 1949), may arguably be distinguished on the basis that in that case the attorney made no claim of inability to reach his client. Though this distinction is somewhat tenuous we believe the case may be further distinguished as set out below. The second case on which the appellant relies is In re United Corporation, 283 F.2d 593 (3d Cir. 1960). In that case the late filed objections were submitted several months beyond the time set for their consideration, no extension was requested, and the attorney's excuses of illness and preoccupation covered only a portion of the time of the delinquency.

In her effort to exclude the opposing attorney's claims from the ambit of excusable neglect, the appellant overlooks two important aspects of a court's decision on a Rule 6.02 motion. Although she is correct in her assertion that this question is one of first impression in this state, there is an extensive body of federal case law on the subject. Since Rule 6(b) of the Federal Rules of Civil Procedure closely resembles the Tennessee rule, we find persuasive authority in the federal cases.

The power of a federal court to grant an extension of time under Rule 6(b)(2) is discretionary. Vandervelde v. Put and Call Brokers and Dealers Ass'n, Inc. 43 F.R.D. 14 (S.D.N.Y. 1967). The facts that will constitute excusable neglect depend on the importance of the matter involved and the prejudice to the opposing party. Coady v. Aguadilla Terminal, Inc., 456 F.2d 677 (1st Cir. 1972). Prejudice has been the most important consideration in grants of extensions. See, e. g. St.Regis Paper Co. v. Upgrade Corp., 86 F.R.D. 355 (W.D. Mich. 1980). It has been stated that without a showing of prejudice to the other party, extensions should be liberally granted. United States v. Miller Brothers Constr. Co., 505 F.2d 1031 (10th Cir. 1974). Where no prejudice is shown one federal court did not even reach the question of what constitutes excusable neglect. See Brust v. Industrial Bank of Commerce, 18 F.R.D. 90 (S.D.N.Y. 1955).

The two areas in which the federal attitude toward extensions has been stricter are in motions affecting the finality of judgments and in the times applicable to appeals. See Moore's Federal Practice, 1984 Rules Pamphlet Part I, P6.2[6] [1984]; 2 Moore's Federal Practice, P6.07[2] (1970); Citizens' Proteceive League v. Clark, involved the time for filing the record on appeal. Thus, we think this case inapposite to the question of extensions for the filing of objections to a special master's report.

Tennessee courts have also exhibitied a liberal attitude toward grants of filing extensions. See State ex rel. Sims v. Reagan, 175 Tenn. 607, 136 S.W.2d 521 (1939); Leeper Hardware Co. v. Kirk, 58 Tenn. App. 549, 434 S.W.2d 620 (1968). As in the federal cases, prejudice to the opposing party has been an important factor in review of such grants. Union Livestock Yards, Inc., v. Merrill Lynch, Etc., 552 S.W.2d 392 (Tenn.Ct.App. 1976). In the present case the appellant has not raised any claim of prejudice resulting from the Trial Judge's grant of an extension for filing objections to the Special Master's report. In response to a question from the bench the appellant's attorney was unable to describe how his client had been prejudiced by the extension. It is clear from the record that appellant was also permitted additional time in which to file objections and availed herself of this opportunity.

As no prejudice resulted from the extension, the question of what constitutes neglect does not arise, so there was no error in the Trial Judge's action.

The appellant next contends that the Trial Judge abused his discretion in confirming the Special Master's report and then granting relief that varied from the recommendations contained in the report. The effect of confirming a master's report is to give the facts therein the same force as if they had been found by the trial Judge. See Gibson's Suits in Chancery § 663 (5th ed. 1955). When confirmed, the report is conclusive on the parties insofar as it conforms to the order of reference. Clemmons v. Haynes, 3 Tenn. App. 20 (1926). The report is not, however, binding on the trial Judge. He may accept it, alter it, or reject it in whole or in part. Tenn.R.Civ.P. 53.04(2) (1981). He must also consider objections to the report filed by the parties. See Hawkins v. Hubbell & Houser, 127 Tenn. 312, 154 S.W. 1146 (1913). Thus, as we have held that the late filed exceptions were properly considered, there was no error in the Trial Judge's action wherein his decree differed from the Special Master's report on the issue of visitation.

A procedural defect resulted, however, from the way in which the Special Master's report was confirmed. The record shows that the report was confirmed without a motion for action on the report. We think that Rule 53.04 contemplates a requirement for such a motion before any action by the Trial Judge on the report. Rule 53.04 states: "In an action to be tried without a jury the court shall act upon the report of the master. . . . Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6.04." Tenn.R.Civ.P. 53.04(2) (1981). The first sentence requires the court to act upon the report; the second sentence described the method by which this action is to be initiated. To interpret the rule as permitting a court to act upon its own motion in confirming the report would negate the second quoted sentence. This would violate the rule of interpretation which says that each part of a statute rule should be given effect. Sands, Statutes and Statutory Construction § 46.06 (1973). If we attribute to the rule its literal meaning, then the proper procedure is for the court to confirm the master's report pursuant to motion of one of the parties. However, as this error has neither affected the merits nor prejudiced any party, it is harmless.

The appellant also contends that the Trial Judge abused his discretion in altering the visitation provisions set out in his order of January 5, 1983. That order provided, in part, for one week Christmas visitation periods to be alternated annually between the parents. The court's final order allowed one week to each parent during the Christmas holidays and deleted the provision for alternation. At the outset we remind the appellant that the court's jurisdiction over matters of custody including visitation is continuing. T.C.A. § 36-6-101 (1984); State ex rel. Baker v. Turner, 562 S.W.2d 435 (Tenn.Ct.App. 1977). The determinative issue in custody and visitation matters is the welfare of the child. Riddick v. Riddick, 497 S.W.2d 740 (Tenn.Ct.App. 1973); Bevins v. Bevins, 53 Tenn. App. 403, 383 S.W.2d 780 (1964). It has been held in this state that it is important to a child's welfare that she have a meaningful relationship with her father, and that this consideration will support a change in visitation privileges. Dillow v. Dillow, 575 S.W.2d 289 (Tenn.Ct.App. 1978). Thus, we cannot sustain the appellant's contention. Since the Trial Judge is in no way bound by the Special Master's recommendation for alternating Christmas visitation periods, he was within the proper exercise of his discretion to decree that the child's welfare would best be served by allowing annual visitation. In view of the fact that the court's jurisdiction is continuing, the Trial Judge could properly recognize the changed circumstances of the father's employment which, by giving him additional vacation time at Christmas, made annual visitation practical.

In his brief the appellee raised the claim that this appeal was frivolous and that he is, therefore, entitled to an award of attorney's fees and costs as damages. The authority for this claim is found in T.C.A. § 27-1-122 which states:

Damages for frivolous appeal. - When it appears to any reviewing court that the appeal from any court of record was frivolous or taken solely for delay, the court may, either upon motion of a party or of its own motion, award just damages against the appellant, which may include but need not be limited to, costs, interest on the judgment, and expenses incurred by the appellee as a result of the appeal.

T.C.A. § 27-1-122 (1980).

The appellee correctly states that the test for a frivolous appeal is whether there is any justiciable issue of law or fact presented by the appeal. Davis v. Gulf Ins. Group, 546 S.W.2d 583 (Tenn. 1977). In addition we think it important to recognize that cases resulting from the breakup of the marriage relationship present a special set of circumstances that make it incumbent on appeals courts to adhere to the view that the frivolous appeals statute is to be strictly construed. See Davis v. Gulf Ins. Group, 546 S.W.2d at 583; Young v. Young, Court of Appeals No. 83-1-II (filed Oct. 21, 1983) (Cantrell, J. partial Dissent). Since this appeal presents an issue of first impression and involves a question of the Trial Judge's proper exercise of discretion in a child visitation matter, see King v. King, Court of Appeals No. 83-192-II (filed Jan. 6, 1984), we hold that this appeal is not frivolous and deny the appellee's claim for damages.

The decision of the Trial Court is hereby affirmed and the cause is remanded to the Circuit Court of Davidson County. Tax the costs on appeal to the appellant.


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