In re Avery B.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

May 14, 2015 Session

IN RE AVERY B.

Appeal from the Juvenile Court for Tipton County

No. 08JV10382 William A. Peeler, Judge

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No. W2014-01974-COA-R3-JV – Filed July 2, 2015

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This appeal arises from a custody dispute in the Juvenile Court of Tipton County.

Because the order appealed from is not a final judgment, we dismiss the appeal for lack

of subject matter jurisdiction.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN

STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Rachel L. Lambert, Arlington, Tennessee, for the appellant, M. K. B.

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellee, C.C.

MEMORANDUM OPINION1

Background and Procedural History

The parties in this case are unmarried parents to the minor child at issue, Avery B.

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Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse or

modify the actions of the trial court by memorandum opinion when a formal opinion would have

no precedential value. When a case is decided by memorandum opinion it shall be designated

“MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any

reason in any unrelated case.

(“Avery”).2 On December 22, 2008, approximately a month after Avery’s birth, Mother

filed a petition for child support and medical expenses in the Juvenile Court of Tipton

County. Father responded on December 23, 2008, by filing a motion for genetic testing.

Genetic testing later confirmed that Father was the biological parent of Avery, and

initially, the parties were able to reach an agreement as to parenting issues. On March

26, 2010, the trial court approved an agreed permanent parenting plan that designated

Mother as the primary residential parent. Father was awarded specified parenting time

under the plan and was also ordered to pay $1,533.00 in monthly child support.

Unfortunately, whatever peace was achieved through this parenting plan did not last.

On December 18, 2012, Father filed a petition to modify the parties’ parenting

plan. His petition averred that Mother’s mental capacity impeded her ability to properly

care for Avery and also alleged that Mother had engaged in a pattern of behavior that

alienated Avery from Father. In particular, Father claimed that Mother had made

numerous false allegations that Father had sexually abused Avery. Father asserted that

these allegations had resulted in a substantial decrease in his parenting time with Avery

due, in part, to investigations of Father by the Department of Children’s Services

(“DCS”) at the instigation of Mother. On January 8, 2013, Father filed a petition for

criminal contempt against Mother. Father’s contempt petition was predicated on

Mother’s alleged failure to honor Father’s holiday parenting time.

On March 28, 2013, the trial court entered a consent order adjudicating Father’s

petitions. Although the trial court did not alter its designation of Mother as Avery’s

primary residential parent, it did approve an agreed parenting plan that afforded Father

increased parenting time. Father’s petition for criminal contempt was dismissed without

prejudice. As before, the resolution of the litigation brought only temporary peace

between the parties.

On December 16, 2013, Mother filed a pleading styled “Emergency Petition for

Injunction and Petition to Modify the Previous Order of the Court to Suspend Father’s

Parenting Time and For Father to Receive Supervised Parenting Time.” The petition

alleged that Avery had made recent disclosures of sexual abuse committed by Father and

expressed general concern for Avery’s welfare. The petition requested that the trial court

immediately suspend Father’s parenting time or enter an order imposing conditions on his

parenting time for Avery’s care and protection. The petition also prayed that Father’s

parenting schedule be modified after a hearing, consistent with Avery’s best interest.

Father responded to Mother’s emergency petition on December 19, 2013. In his

response, Father submitted that Mother had a history of making false allegations against

him regarding his conduct towards Avery. He further stated that DCS had never found

2

In order to protect the anonymity of minor children, the Court, in its discretion, may elect to use initials

for the children, their parents, and others. K.B.J. v. T.J., 359 S.W.3d 608 n.1 (Tenn. Ct. App. 2011).

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any evidence that Avery had been sexually abused. Contemporaneous with the filing of

his response, Father filed his “Emergency Petition to Modify Parenting Plan, for Criminal

Contempt, for Injunctive Relief, and for Supervised Parenting Time.” The petition

recounted Mother’s alleged history of making false allegations against Father and averred

that Mother’s behavior reflected a pattern of mental instability. The petition stated that

Mother should be required to seek long-term therapy and requested that her parenting

time with Avery be supervised. Father contended that it was in Avery’s best interest to

designate him as the primary residential parent. Moreover, he alleged that Mother should

be held in criminal contempt for willfully refusing to allow Father to exercise his

parenting time.

A hearing on the emergency aspects to the parties’ petitions was held on

December 19, 2013. On January 21, 2014, the trial court entered an order finding that

there was insufficient evidence to sustain Mother’s emergency requests for relief. As a

result, the trial court declined to suspend Father’s parenting time or otherwise require that

it be supervised. Other matters, however, were reserved for future adjudication.

A hearing on Father’s petition to modify occurred over three separate dates in May

and June 2014. The case was taken under advisement following trial. On September 4,

2014, the parties returned to court at which time the trial judge made an oral ruling that

Father should be designated as the primary residential parent for Avery. A written order

memorializing this ruling was subsequently entered on September 9, 2014. In pertinent

part, the trial court’s order stated as follows:

2. A substantial and material change in circumstances exist such that it is in

the best interest of the minor child, [Avery], to be in the care of Father, and

Father shall be designated as the primary residential parent. The exchange

of the minor child shall occur immediately.

3. Mother shall be awarded supervised parenting time. Counsel for the

parties shall attempt to agree on an appropriate supervisor and schedule, but

should they be unable, this Honorable Court shall determine the appropriate

supervisor and schedule for Mother. It is the goal of this Court to award

Mother standard parenting time after this Honorable Court is satisfied that

Mother’s long term therapy has appropriately addressed Mother’s

psychological functioning.

4. Mother shall immediately engage in intensive long term therapy to

address those concerns of this Honorable Court regarding Mother’s conduct

and psychological functioning. The parties shall address this Court in

ninety (90) days to assess Mother’s compliance with this Court’s

requirement that Mother receive intensive therapy. Counsel for the parties

shall contact the Clerk of Court to schedule said hearing.

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5. Mother shall be enjoined from having anyone, including but not limited

to, law enforcement, doctor, or therapist, evaluate the minor child without

an Order of this Honorable Court.

6. Father shall select a therapist/counselor for Avery.

7. Father’s ongoing child support obligation is terminated immediately.

This Honorable Court shall address child support when Mother is able to

exercise unsupervised parenting time.

On September 15, 2014, Mother filed a notice indicating that she was appealing

the trial court’s September 9 order. Nearly two months later, on November 4, 2014, the

trial court entered an order setting a supervised parenting schedule for Mother. The trial

court’s November 4 order stated that “[t]his schedule shall be reviewed in ninety (90)

days from the Court’s ruling on September 4, 2014, to assess Mother’s compliance with

this Court’s order requiring Mother to receive intensive therapy and Counsel for the

parties shall contact the Clerk of Court to schedule said hearing.” Father’s petition for

contempt was later “denied” by an order entered on January 7, 2015.

Discussion

On appeal, Mother raises three specific issues in challenging the trial court’s

decision to modify custody. First, Mother contends the trial court erred in holding that

there was a substantial and material change in circumstances requiring a modification of

the parties’ permanent parenting plan. Second, Mother asserts the trial court erred in

holding that it was in Avery’s best interest to change the designation of the primary

residential parent. Lastly, Mother claims the trial court did not apply the correct best

interest statute in determining the appropriate custodial parent for Avery. Because we

conclude that the order appealed from is not a final order, we are without subject matter

jurisdiction to review Mother’s issues in this appeal.

As this Court previously stated:

The concept of subject matter jurisdiction involves a court’s power to

adjudicate a particular type of controversy. See Meighan v. U.S. Sprint

Communications Co., 924 S.W.2d 632, 639 (Tenn.1996); Turpin v. Conner

Bros. Excavating Co., 761 S.W.2d 296, 297 (Tenn.1988). Courts derive

their subject matter jurisdiction from the Constitution of Tennessee or from

legislative act, see Kane v. Kane, 547 S.W.2d 559, 560 (Tenn.1977); Brown

v. Brown, 198 Tenn. 600, 618–19, 281 S.W.2d 492, 501 (1955), and cannot

exercise jurisdictional powers that have not been conferred directly on them

expressly or by necessary implication. See Hicks v. Hicks, No. 01A01–

9309–CH–00417, 1994 WL 108896, at *2 (Tenn.Ct.App.Mar.30, 1994)

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(No Tenn.R.App.P. 11 application filed). A court’s subject matter

jurisdiction in a particular circumstance depends on the nature of the cause

of action and the relief sought. See Landers v. Jones, 872 S.W.2d 674, 675

(Tenn.1994). It does not depend on the conduct or agreement of the parties,

see Shelby County v. City of Memphis, 211 Tenn. 410, 413, 365 S.W.2d

291, 292 (1963); James v. Kennedy, 174 Tenn. 591, 595, 129 S.W.2d 215,

216 (1939), and thus the parties cannot confer subject matter jurisdiction on

a trial or an appellate court by appearance, plea, consent, silence, or waiver.

See Caton v. Pic–Walsh Freight Co., 211 Tenn. 334, 338, 364 S.W.2d 931,

933 (1963); Brown v. Brown, 198 Tenn. at 618–19, 281 S.W.2d at 501.

Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999). Except

as permitted under the Tennessee Rules of Appellate Procedure or under Rule 54.02 of

the Tennessee Rules of Civil Procedure, this Court only has subject matter jurisdiction

over final orders. See Bayberry Assocs. v. Jones, 783 S.W.2d 553, 557˗59 (Tenn. 1990);

Tenn. R. App. P. 3(a). The present appeal is not an appeal by permission pursuant to the

Tennessee Rules of Appellate Procedure, and the record does not reflect that the trial

court’s September 9, 2014, order was made final pursuant to the authority in Rule 54.02

of the Tennessee Rules of Civil Procedure. As such, the civil action appealed from must

resolve all claims, rights, and liabilities of the parties in order for this Court to exercise

jurisdiction. See Ball v. McDowell, 288 S.W.3d 833, 836˗37 (Tenn. 2009) (“A final

judgment . . . is one that resolves all of the parties’ claims and leaves the court with

nothing to adjudicate.”).

From our review of the record transmitted to us, we have determined that there is

an absence of a final judgment. First, we note that the trial court never entered a

permanent parenting plan following its decision to modify the custodial arrangement.

The trial court entered a supervised parenting schedule pursuant to its November 4, 2014,

order, but the trial court’s orders clearly contemplate that the supervised schedule was to

be only temporary. In its September 9, 2014, order, the trial court stated, “It is the goal of

this Court to award Mother standard parenting time after this Honorable Court is satisfied

that Mother’s long term therapy has appropriately addressed Mother’s psychological

functioning.” In the same order, the trial court went on to state, “The parties shall

address this Court in ninety (90) days to assess Mother’s compliance with this Court’s

requirement that Mother receive intensive therapy. Counsel for the parties shall contact

the Clerk of Court to schedule said hearing.” Moreover, in its November 4, 2014, order,

the trial court stated that Mother’s supervised parenting schedule “shall be reviewed in

ninety (90) days from the Court’s ruling on September 4, 2014 . . . and Counsel for the

parties shall contact the Clerk of Court to schedule said hearing.”

Because the trial court’s September 9 and November 4 orders contemplate that an

additional hearing will be held concerning the parenting schedule, it is apparent from a

clear reading of the orders that they were not final orders for purposes of appeal. Second,

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we observe that the trial court’s orders do not set child support for Avery. In its

September 9, 2014, order, the trial court stated as follows: “Father’s ongoing child

support obligation is terminated immediately. This Honorable Court shall address child

support when Mother is able to exercise unsupervised parenting time.”3

The trial court’s orders clearly reflect that not all matters in this case have been

resolved. Because we lack subject matter jurisdiction due to the absence of a final

judgment, we hereby dismiss Mother’s appeal. Costs on appeal are assessed against

Mother, M.K.B., and her surety, for which execution may issue if necessary. This matter

is remanded to the trial court for the collection of costs, enforcement of the judgment, and

any further proceedings as may be necessary and consistent with this Opinion.

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ARNOLD B. GOLDIN, JUDGE

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We note that after announcing his oral ruling on September 4, 2014, the trial judge stated, “[W]hen the

Court puts the parenting time in place then we will have the numbers to do the [child support]

calculation.”

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