Tennessee Appellate Court Reverses Trial Court’s Allowing Divorce Referee Order Of Reference

In some counties in Tennessee, a Divorce Referee’s Office has been established to review and monitor all divorce complaints filed to assure compliance with local and state laws. The duties of Divorce Court Referee the divorce referee include the following:

  • Attend divorce trials
  • Conduct hearings to set temporary (pendente lite) child support, alimony, and attorney fees
  • Enter an appearance in every divorce case

Divorce referees are prohibited, however, from representing and/or giving legal advice to either party in a divorce action.

In Dale Crafton Roberts v. James Frederick Roberts Dale (Mother) and James (Father), the parents of two children, divorced in 2007. Father was designated the primary residential parent for the youngest child, and Mother was designated the primary residential parent for the oldest child. In 2010, Father petitioned to modify the parenting schedule. Mother counter-petitioned to change custody of the youngest child and to limit Father’s parenting time.

After several days of trial in 2011, the trial court entered a temporary parenting schedule pending the resumption of the trial two months later. After the trial resumed two months later, the trial court ruled its temporary parenting schedule would be made permanent. Regarding the child support dispute, the trial court indicated it refers such matters to the “divorce referee.”

Father then filed a petition to modify child support. Mother responded with a motion requesting the trial court enter orders regarding the earlier proceedings and refer disputes over child support to the divorce referee. Proceedings took place before the divorce referee in late 2011 and early 2012. In addition to addressing the child support issues, the referee ruled Mother should be designated the primary residential parent for both children.

The same day the divorce referee’s recommendations were filed with the trial court in July 2012, the trial court entered an order appointing the divorce referee as a Special Master pursuant to Rule 53 of the Tennessee Rules of Civil Procedure. The order of reference purported to refer “all outstanding matters” to the divorce referee acting as a Special Master, including the construction of a permanent parenting plan. The order was entered in July 2012 with a stated effective date of October 28, 2011. While Father filed objections to the Special Master’s report, the trial court ultimately adopted the Special Master’s findings and recommendations.

Father appealed to the Tennessee Court of Appeals At Jackson arguing, among other things, that the after the fact order of reference was improper.

After reviewing the record and hearing oral arguments the Appellate Court concluded the following:

Here, there is no evidence in the record indicating that the trial court, on or before October 28, 2011, intended to refer all outstanding matters to the divorce referee for a Special Master hearing. We would thus agree with Father that the nunc pro tunc entry of the July 2012 order of reference was improper. Moreover, we fail to see how the referee could have, in good faith, delved into issues as a Special Master for which there was no controlling order of reference as contemplated by Rule 53.02 of the Tennessee Rules of Civil Procedure.

There is a lack of findings evidencing that the trial court performed the two-step analysis required for a custody modification. First, there is not a finding of a material change in circumstance in either the referee’s written report or the trial court’s order adopting it. Second, there is an absence of an appropriate best interest analysis.

Accordingly, the trial court’s decision was reversed.

If a trial court allowed an after the fact order of reference from a divorce referee or you find your find yourself tangled in the family court process, having experienced, competent representation is paramount. Contact attorney Donna Wagner to schedule a consultation to discuss the specifics of your case.

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