                  IN THE SUPREME COURT OF TENNESSEE
                              AT JACKSON



                                      FOR PUBLICATION  FILED
TODD FREDERICK BROOKS,           )    Filed: May 24, 1999
                                 )
      Plaintiff/Appellant,       )    SHELBY COUNTY
                                 )
v.                               )    Hon. Karen R. Williams 24, 1999
                                                           May
                                 )    Judge
LINDA FAYE CARTER,               )
                                 )    No. 02S01-9903-CV-00023
      Defendant/Appellee.        )                   Cecil Crowson, Jr.

                                                      Appellate Court Clerk




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.
       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,



                                          -2-
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

                                             -3-
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

                                          -4-
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.



                                   -5-
       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


                                   -6-
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


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 h im.
Hearing their parents fighting, the children then walked into the room, observed the
gun, a nd be ca m e 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 unt il
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.

                                              -7-
        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



        Describing himself as a "stress smoker," the Father further acknowledged 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 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.

                                                   -8-
custody of the children, awarding liberal visitation to the Father, recalculating the

Father’s child support obligation pursuant to the Child Support Guidelines, 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




       4
           Rule 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.

                                                 -9-
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




         5
         Although 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 licatio ns to be gr ante d, Ru le 22( d) sp ecifie s tha t an a ppe al m ay not be
“dispos ed of” by a s ingle judge .

                                                     -10-
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.

                                           -11-
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




                                          -12-
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


         6
          Rule 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 ). W e
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 ord er. 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 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 Tenn. R. App. P. 42, the Court of Appeals may justifiably direct that mandate be
imm ediat ely 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.

                                                    -13-
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.




                                        -14-
