Toms v. Toms

In order to shed some insight on the next installments of My Story: For the Love of a Child, I am going to discuss several other cases in my next few postings.

As I mentioned before, I argued my first case before the Tennessee Supreme Court in 2002 in the case of Toms v. Toms, 98 S.W.3d 140 (Tenn. 2003). The case is posted on An Attorney’s Tale Facebook page. The case made its way to the state’s highest court via what is known as an Extraordinary Appeal, an appeal where the trial court “has so far departed from the accepted and usual course of judicial proceedings as to require immediate review.” R.10 Tenn.R.App.Proc. I filed the appeal on behalf of my client, the mother of two young children whom were taken from her and given to the paternal grandparents by the court based solely on the report of a guardian ad litem.

I was retained by the mother after she was summonsed to defend an action by the paternal grandparents in a divorce. The grandparents filed a motion to intervene because they were aware that given the actions of the father, that he would not get custody. The circuit court judge to whom the case was assigned was Robert “Butch” Childers; however, the grandparents filed their “emergency” motion while he was out of town, so the case ended up before Judge James Russell. The grandparents’ attorney was William Monroe, the father’s attorney was Wendy Dabbous, and the guardian ad litem, “GAL”, was Susan Hinsley.

At the “so-called” hearing, the judge only took in the GAL’s written report, over my vehement objections of hearsay and lack of veracity (truthfulness) of the report. The judge called the attorneys to the bench and looked at me and said, “You need to crack open the books and learn how we do things in Shelby County.” I thought, well the law books say I am right; what other books do I need to look at?” The judge ordered the immediate change of custody from the mother to the grandparents, and deputies were dispatched to ensure that it occurred.

I filed an application to the Tennessee Court of Appeals for an Extraordinary Appeal; however, they denied the application. I then filed the application with the Tennessee Supreme Court, which granted the application. Both sides had to simultaneously file an expedited brief, and oral arguments were set soon thereafter.

During the time period in which the briefs were being prepared, the grandparents’ attorney, William Monroe, filed a complaint against me with the Tennessee Board of Professional Responsibility (“TBPR“), the “policing arm” of the Tennessee Supreme Court; this was clearly his response to the granting of the appeal. He complained that I allowed my client to secretly record Hinsley’s visit to the mother’s home to inspect the home and interview my client. Prior to the visit by Hinsley, my client did inform me that she was going to secretly videotape the visit for her own protection against any mistruths made by Hinsley; I did not advise her to do it, nor did I have any position on it. The TBPR issued a Public Censure against me for NOT advising my client to NOT do something that she had every legal right to do. Under federal law and Tennessee law, a person that is involved in a conversation or meeting may secretly record it as long as that person stays in the conversation or meeting. My client did nothing illegal; however, I was censured for NOT telling her to not do it. This shows the political nature of the TBPR; the law does not matter, only the politics of the people who have the connections matter. Of course, after having filed complaints against Madison County attorney Christy Little and Madison County Circuit Court Judge Whit LaFon, the TBPR had zeroed in on me as a person who will “buck the system”, which is not “politically correct.” The trial judge ordered my client to turn over the original and all copies of the tape to Hinsley. Of course, my client’s fears were correct since Hinsley made many “erroneous” statements in her report.

During oral arguments before the high court, William Monroe stated to the court that it is rare for attorneys to be arguing constitutional issues in a family law matter. When I heard that statement, I thought to myself, “why“? Does the Constitution not apply to family law cases? My answer to myself was, “of course not”. I have first hand experience of the utter disregard of supposedly protected constitutional parental rights in child custody matters. I have also seen the same disregard day in and day out in the Shelby County courts, the disregard being hidden in the legal fiction of deciding cases “in the best interests of the child.” The Tennessee Supreme Court did rule in my client’s favor; however, getting her children back was still an issue.

After the high court’s decision, the case was sent back to the original trial judge, Judge Childers, the judge who was REVERSED by the Tennessee Supreme Court in the Anna Mae He case. Judge Childers was not at all happy about the Extraordinary Appeal nor at the fact that my client, the mother, won the case. The Tennessee Supreme Court ordered the grandparents to pay my fees, which totaled around $12,000; however, Childers knocked that amount down to two to three thousand. Childers also dismissed the divorce case, and when I stated that we needed an order to transfer custody of the children back to the mother, he just smugly raised his shoulders and said the case is over. These actions were clearly vindictive, and the refusal to issue a transfer order was a slap in the face of the Tennessee Supreme Court and created a “race” to the Juvenile Court. Prior to a hearing on the matter in Juvenile Court, the grandparents finally relinquished custody to my client.