Tina Marie Jennings Elam (Engle) v. Larry Daniel Elam, Jr. ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 26, 2010
TINA MARIE JENNINGS ELAM (ENGLE) v.
LARRY DANIEL ELAM, JR.
Appeal from the Chancery Court for Rutherford County
No. 03-6292DR David M. Bragg, Judge
No. M2010-00072-COA-R3-CV - Filed July 27, 2010
The father has appealed from the trial court’s order naming the mother as the primary
residential parent and allowing her to move to Indiana with the parties’ minor child. Because
the trial court’s order does not resolve all the claims between the parties, we dismiss the
appeal for lack of a final judgment.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
P ATRICIA J. C OTTRELL, P.J., M.S., F RANK G. C LEMENT, J R. and R ICHARD H. D INKINS, JJ.,
concurred.
Daryl M. South, Murfreesboro, Tennessee, for the appellant, Larry Daniel Elam, Jr.
Brad W. Hornsby, Murfreesboro, Tennessee, for the appellee, Tina Marie Elam (Engle).
MEMORANDUM OPINION 1
The parties were divorced by a final decree of the Chancery Court for Rutherford
County on August 12, 2003. The final decree, together with the parties’ marital dissolution
agreement and permanent parenting plan, sets forth the parties’ residential time with the
minor child as well as the father’s child support and alimony obligations. Since the divorce,
1
Tenn. R. Ct. App. 10 states:
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be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited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.
the parties have engaged in further litigation regarding the father’s support obligations,
including a petition for contempt filed by the mother in December of 2008, which appears
to remain pending.
On August 27, 2009, the mother notified the father that she intended to move to
Indiana with the minor child. The father filed a petition in opposition to the relocation on
September 22, 2009. On December 8, 2009, the trial court entered an order finding that the
parties spent “fairly equal” periods of time with the child and that the mother had no
reasonable purpose for the move to Indiana, but that it would nevertheless be in the child’s
best interests to move to Indiana with the mother. The trial court thus designated the mother
as the primary residential parent and granted her permission to move to Indiana with the
child. The order provided that “upon request, the court will address the issue of child support
based upon said move of mother.” The court also noted that it “did not rule upon the
previously filed contempt petition and the remaining request of mother for attorney’s fees
and will let that matter be resolved by Judge Taylor at a subsequent hearing.” 2 No new
permanent parenting plan was filed as required by Tenn. Code Ann. § 36-6-404. The father
filed his notice of appeal on January 5, 2010.
A party is entitled to an appeal as of right only after the trial court has entered a final
judgment. Tenn. R. App. P. 3(a); In re Estate of Henderson, 121 S.W.3d 643, 645
(Tenn.2003); King v. Spain, No. M2006-02178-COA-R3-CV, 2007 WL 3202757 at *8
(Tenn. Ct. App. October 31, 2007). A final judgment is a judgment that resolves all the
claims between all the parties, “leaving nothing else for the trial court to do.” State ex rel.
McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App. 1997). An order that adjudicates
fewer than all the claims between all the parties is subject to revision at any time before the
entry of a final judgment and is not appealable as of right. Tenn. R. App. P. 3(a); In re Estate
of Henderson, 121 S.W.3d at 645. The trial court may direct the entry of a final judgment
as to fewer than all of the claims or parties. Tenn. R. Civ. P. 54.02. However, the trial court
must make an express determination that there is no just reason for delay and an express
direction for the entry of judgment. Tenn. R. Civ. P. 54.02.
The record on appeal was received by this court on April 20, 2010. Upon reviewing
the record, the court determined that the December 8, 2009 order is not a final judgment
because the trial court has not resolved the issue of child support, disposed of the mother’s
contempt petition, or approved a permanent parenting plan. Moreover, the trial court has not
directed the entry of a final judgment in accordance with Tenn. R. Civ. P. 54.02. On May
10, 2010, this court ordered the father either to obtain a final judgment from the trial court
2
Judge Royce Taylor, to whom the case had been previously assigned, was unavailable on the trial
date, and the case was transferred to Judge David Bragg without objection.
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within sixty days or else to show cause why his appeal should not be dismissed. More than
sixty days have now passed, no final judgment has yet been entered, and the father has not
otherwise responded to our order.
Because the trial court has not yet entered a final judgment, the father’s appeal is
dismissed without prejudice to the filing of a new appeal once a final judgment has been
entered. The case is remanded to the trial court for further proceedings consistent with this
opinion. Should a new appeal be filed, the clerk of this court shall, upon request of either
party, consolidate the record in this appeal with the record filed in the new appeal. The costs
of the appeal are taxed to Larry Daniel Elam, Jr, and his surety.
PER CURIAM
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