Jennifer McClain Swan v. Frank Edward Swan ( 2008 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 19, 2008
JENNIFER MCCLAIN SWAN v. FRANK EDWARD SWAN
Appeal from the Circuit Court for Knox County
No. 105006 Bill Swann, Judge
No. E2007-2265-COA-R3-CV - FLED SEPTEMBER 24, 2008
Jennifer McClain Swan (“Mother”) and Frank Edward Swan (“Father”) were divorced in March of
2006 in Knox County Chancery Court (“Chancery Court”). The parties have two minor children
born of the marriage (“the Children”). In October of 2006, Mother obtained first an Ex Parte Order
of Protection against Father and then a Bridging Ex Parte Order of Protection from the Fourth Circuit
Court for Knox County (“Circuit Court”). Over the next few months, Mother filed multiple petitions
for contempt alleging that Father had violated the Order of Protection. After a hearing, the Circuit
Court entered an order finding and holding, inter alia, that Father had violated the Bridging Order
of Protection a total of forty-four times, that Father would serve time in the Knox County Penal
Farm, that Mother had a no-contact Order of Protection against Father for ten years, and that Mother
would be allowed to relocate outside the state of Tennessee without having to reveal her address to
Father. The Circuit Court also entered a modification of the Chancery Court’s Permanent Parenting
Plan that, inter alia, named Mother the primary residential parent and provided that Father would
have co-parenting time with the Children only upon the recommendation and approval of Father’s
psychologist, the Children’s psychologist, the Guardian Ad Litem, and the Court. Father appeals to
this Court. We vacate the Permanent Parenting Plan entered by the Circuit Court and affirm the
remainder of the Order of Protection.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated, in part; Affirmed, in part; Case Remanded
D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
SHARON G. LEE, J., joined.
Christopher D. Heagerty, Knoxville, Tennessee for the Appellant, Frank Edward Swan.
James S. Sharp, Jr., and Cecilia S. Petersen, Knoxville, Tennessee for the Appellee, Jennifer
McClain Swan.
OPINION
Background
Mother and Father were divorced in March of 2006 in Chancery Court. At that time,
the Chancery Court entered a Permanent Parenting Plan relating to the Children.
In September of 2006, Mother sought an Order of Protection in the Circuit Court
against Father alleging, in part, that Father was demonstrating erratic and unstable behavior by Father
making drive-byes at Mother’s house, making harassing telephone calls to Mother and Mother’s
boyfriend, eavesdropping outside Mother’s house, trespassing in Mother’s house, and sending
harassing text messages to Mother and her boyfriend. Mother’s petition stated that the Children had
not been physically affected by Father’s behavior. The Circuit Court entered an Ex Parte Order of
Protection and later a Bridging Ex Parte Order of Protection ordering Father to refrain from any
contact with Mother.
Mother subsequently filed multiple petitions for contempt alleging that Father was
in contempt of the Order of Protection for, among other things, telephoning her, coming to her home,
and stealing her mailbox. The Circuit Court held a hearing in March of 2007 and entered an Agreed
Order finding and holding, inter alia, Father was prohibited from contacting Mother, the Children
were placed in the sole custody of Mother, Father was prohibited from having any contact with the
Children “until recommended by Dr. Bruce Seidner and approved by this Court,” and that “this
matter shall be reset by the agreement of the parties after the Father undergoes a complete forensic
psychological evaluation with Dr. Bruce Seidner.” Father underwent an evaluation with psychologist
Bruce Seidner, Ph.D. and then petitioned the Circuit Court for visitation with the Children.
In December of 2006, Mother filed a petition in Chancery Court seeking to modify
custody. Father filed a motion requesting the appointment of a Guardian Ad Litem for the Children
and a Rule 60 motion seeking to have the divorce set aside.
Mother filed several more petitions for contempt alleging that Father had violated the
Order of Protection by, among other things, coming to Mother’s house, calling Mother on the
telephone, and removing or damaging security cameras and motion sensors at Mother’s house. On
September 19, 2007, the Circuit Court entered an order finding and holding, inter alia, that Father
had violated the Bridging Order of Protection forty-four times, that Father already had served six
days in jail and would serve an additional thirty-five days, that upon release from jail Father would
serve ninety days with a tracking ankle bracelet, that Father was sentenced to one year in addition
to the previous time served to be held in abeyance, that Mother had a ten year no-contact Order of
Protection against Father, and that Mother would be allowed to relocate outside the state of
Tennessee and would not be required to reveal her home address to Father. The September 19, 2007
order also entered a modified Permanent Parenting Plan that, inter alia, named Mother the primary
residential parent and provided that Father would have co-parenting time with the Children only
upon the recommendation of Father’s approved psychologist, the Children’s psychologist, and the
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Guardian Ad Litem with the accord of all of these persons and the approval of the Court being
required. Father appeals the September 19, 2007 order to this Court.
Discussion
Although not stated exactly as such, Father raises one issue on appeal: whether the
Circuit Court erred in modifying the Chancery Court’s Permanent Parenting Plan.
Our review is de novo upon the record, accompanied by a presumption of correctness
of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn.
R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of
law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v.
Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
As pertinent to the issue raised by Father, Tenn. Code Ann. § 36-6-101 provides:
(a)(1) In a suit for annulment, divorce or separate maintenance, where the custody
of a minor child or minor children is a question, the court may, notwithstanding a
decree for annulment, divorce or separate maintenance is denied, award the care,
custody and control of such child or children to either of the parties to the suit or to
both parties in the instance of joint custody or shared parenting, or to some suitable
person, as the welfare and interest of the child or children may demand, and the court
may decree that suitable support be made by the natural parents or those who stand
in the place of the natural parents by adoption. Such decree shall remain within the
control of the court and be subject to such changes or modification as the exigencies
of the case may require.
Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 2007).
Also as pertinent to the issue raised in this appeal, Tenn. Code Ann. § 36-6-217
provides:
36-6-217. Continuing jurisdiction of state courts – Jurisdiction to modify own
decrees. – (a) Except as provided in § 36-6-219, a court of this state which has made
a child-custody determination consistent with this part has exclusive, continuing
jurisdiction over the determination until:
(1) A court of this state determines that neither the child, nor the child and
one (1) parent, nor the child and a person acting as a parent have a significant
connection with this state and that substantial evidence is no longer available in this
state concerning the child’s care, protection, training, and personal relationships; or
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(2) A court of this state or a court of another state determines that the child,
the child’s parents, and any person acting as a parent do not presently reside in this
state.
(b) A court of this state which has made a child-custody determination and
does not have exclusive, continuing jurisdiction under this section may modify that
determination only if it has jurisdiction to make an initial determination under § 36-
6-216.
Tenn. Code Ann. § 36-6-217 (2005).
In the case now before us on appeal, the Chancery Court entered a Permanent
Parenting Plan when it entered the parties’ divorce decree. There is no argument that at that time
the Chancery Court had jurisdiction over custody, visitation, and all related matters involving the
Children. Under Tenn. Code Ann. § 36-6-217, the Chancery Court had continuing and exclusive
jurisdiction to modify the Chancery Court’s Permanent Parenting Plan, absent one of the statutorily
enumerated circumstances, none of which apply in this case. Tenn. Code Ann. § 36-6-217(a) (2005).
In State ex rel. Whitehead v. Thompson, this Court discussed the issue of subject
matter jurisdiction in cases involving minor children stating:
The concept of jurisdiction involves a court’s authority to adjudicate a
particular controversy. See Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977). In
order to acquire jurisdiction, a court must have jurisdiction not only over the parties
but also over the subject matter of the proceeding. The concept of subject matter
jurisdiction concerns a particular court’s authority to hear a particular type of case.
See Meighan v. U.S. Sprint Comm. Co., 924 S.W.2d 632, 639 (Tenn. 1996); Turpin
v. Conner Bros. Excavating Co., 761 S.W.2d 296, 297 (Tenn. 1988). It relates to the
nature of the cause of action and the relief sought, see Landers v. Jones, 872 S.W.2d
674, 675 (Tenn. 1994), and can only be conferred by the Constitution of Tennessee
or by statute. See Kane v. Kane, 547 S.W.2d at 560; Brown v. Brown, 198 Tenn.
600, 618-19, 281 S.W.2d 492, 501 (1955).
When more than one court has been given jurisdiction to adjudicate a
particular type of controversy, subject matter jurisdiction may also be influenced by
matters of comity and judicial efficiency. Thus, when two courts have concurrent
subject matter jurisdiction, the first court to acquire jurisdiction over a particular case
takes exclusive jurisdiction to end the matter. See American Lava Corp. v. Savena,
476 S.W.2d 639, 640 (Tenn. 1972); Robinson v. Easter, 208 Tenn. 147, 149, 344
S.W.2d 365, 366 (1961); Wilson v. Grantham, 739 S.W.2d 776, 777 (Tenn. Ct. App.
1986). The actions of a court that attempts to exercise jurisdiction over a case after
another court with concurrent jurisdiction has already exercised jurisdiction are
nullities. See State v. Hazzard, 743 S.W.2d 938, 941 (Tenn. Crim. App. 1987).
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These principles have been applied to situations where a court of record has
attempted to act after a juvenile court had already exercised jurisdiction. The
Tennessee Supreme Court has held that a juvenile court that finds a juvenile to be
dependent retains jurisdiction over the child until its majority, and no other court may
issue custody or any other type of order regarding the child without the consent of the
juvenile court. See Kidd v. State ex. rel. Moore, 207 Tenn. 244, 251-252, 338
S.W.2d 621, 624-25 (1960). Using similar reasoning, this court has determined that
a court of record did not have jurisdiction to render custody orders with regard to
children that were already the subject of a dependent and neglect proceeding pending
in the juvenile court without the juvenile court’s consent. See Arnold v. Gouvitsa,
735 S.W.2d 458, 461-62 (Tenn. Ct. App. 1987). We perceive no reason preventing
the application of these precedents to child support proceedings.
State ex rel. Whitehead v. Thompson, No. 01A01-9511-CH-00538, 1997 Tenn. App. LEXIS 860, at
**5-7 (Tenn. Ct. App. Dec. 5, 1997), no appl. perm. appeal filed.
Likewise, we perceive no reason preventing application of the precedents discussed
to the case at hand. The Chancery Court obtained jurisdiction over the Children in custody matters
during the parties’ divorce action and it retained such jurisdiction. The Circuit Court would have
had jurisdiction under Tenn. Code Ann. § 16-10-108 concurrent with the Chancery Court to enter
a Permanent Parenting Plan with regard to the Children if the matter had been filed originally in
Circuit Court rather than Chancery Court. However, once the Chancery Court obtained jurisdiction
in matters involving the Children, jurisdiction remained in the Chancery Court unless and until
jurisdiction was properly vested in another court.
Mother argues, in part, that the Circuit Court had jurisdiction to enter the Permanent
Parenting Plan by virtue of Tenn. Code Ann. § 36-3-606, which provides, in pertinent part:
(a) A protection order granted under this part to protect the petitioner from domestic
abuse, stalking or sexual assault may include, but is not limited to:
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(6) Awarding temporary custody of, or establishing temporary visitation
rights with regard to, any minor children born to or adopted by the parties;…
Tenn. Code Ann. § 36-3-606 (Supp. 2007).
The modified Permanent Parenting Plan entered by the Circuit Court awards complete
custody and decision making for the Children to Mother and forbids Father from having any contact
whatsoever with the Children absent the recommendation of Father’s psychologist, the Children’s
psychologist, and the Guardian Ad Litem, and approval of the Court. However, the record on appeal
is devoid of any evidence showing that entry of this modified Permanent Parenting Plan was
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necessary to effectuate the Order of Protection. Mother admits in her petition seeking an order of
protection that the Children had not been physically affected by Father’s behavior. While the Circuit
Court could have entered an order awarding temporary custody or establishing temporary visitation
as necessary to effectuate the Order of Protection, the Circuit Court did not have jurisdiction to enter
a modified Permanent Parenting Plan which effectively permanently modifies the Chancery Court’s
Permanent Parenting Plan.
Mother argues that the Circuit Court’s modifications to the Chancery Court’s
Permanent Parenting Plan were only temporary in nature because the Circuit Court’s order
concerning the children was to be in effect only “until the Chancellor orders otherwise.” We are not
persuaded that this language contained in the Circuit Court’s order made the modifications to the
Chancery Court’s Permanent Parenting Plan temporary. The Circuit Court’s order made these
changes permanent unless or until the Chancery Court at some later date modified them. In short,
the changes were permanent unless later ordered otherwise by the Chancery Court. Virtually any
order of a court involving custody, visitation or support of children is subject to later modification
given the appropriate circumstances. While we are not unaware that the Circuit Court was faced
with the task of making the best of what can only be described as a bad situation, that does not make
its order modifying the Chancery Court’s Permanent Plan any less permanent. The Circuit Court’s
language made the modifications permanent unless later modified by the Chancery Court.
Our Opinion in no way addresses or effects matters regarding custody or visitation
brought before the Chancery Court, which retains jurisdiction to hear such matters. Rather, our
Opinion addresses only the fact that the Circuit Court lacked jurisdiction to enter a permanent
modification of the Chancery Court’s Permanent Parenting Plan rendering such entry a nullity. See
State ex rel. Whitehead v. Thompson, 1997 Tenn. App. LEXIS 860, at **6-7.
The Permanent Parenting Plan entered by the Circuit Court states that it is entered “by
interchange for” the Chancery Court. As pertinent to this appeal, Tenn. Code Ann. § 17-2-202
provides:
17-2-202. Duty to interchange. – (a) Each state trial court judge has an affirmative
duty to interchange if:
(1) A judge has died or is unable to hold court;
(2) Two (2) or more judges have agreed to a mutually convenient
interchange;
(3) The judge is incompetent under the provisions of § 17-2-101; or
(4) The chief justice of the supreme court has assigned by order a judge to
another court pursuant to Supreme Court Rule 11.
Tenn. Code Ann. § 17-2-202(a) (Supp. 2007). The record is devoid of any showing that any of the
statutory circumstances mandating interchange were present in this case. Further, the record is also
devoid of any order or anything else showing how this “interchange” came about. A judge has an
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affirmative duty to interchange under specified circumstances, but not the right to simply enter orders
for another court by labeling them “by interchange.”
The Circuit Court lacked jurisdiction to modify the Chancery Court’s Permanent
Parenting Plan. We, therefore, vacate the Permanent Parenting Plan as entered by the Circuit Court.
We affirm the remainder of the Order of Protection.
Conclusion
The modified Permanent Parenting Plan entered by the Circuit Court is vacated and
the remainder of the Circuit Court’s September 19, 2007 order is affirmed. This cause is remanded
to the Circuit Court for collection of the costs below. The costs on appeal are assessed against the
Appellee, Jennifer McClain Swan.
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D. MICHAEL SWINEY, JUDGE
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