In Re B.N.W. ( 2005 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 15, 2005 Session
IN RE B.N.W.
Appeal from the Juvenile Court for Davidson County
No. PT20255, PT23364 Betty Adams Green, Judge
No. M2004-02710-COA-R3-JV - Filed December 20, 2005
This appeal involves the decision of the Davidson County, Tennessee, Juvenile Court to decline to
exercise jurisdiction, other than temporary emergency jurisdiction, in a child custody case under the
Uniform Child Custody Jurisdiction and Enforcement Act. The judgment of the trial court is
affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL and FRANK
G. CLEMENT , JR., JJ., joined.
L.R. DeMarco, Nashville, Tennessee, for the Appellant, Debra Whitehead.
Mike J. Urquhart, Nashville, Tennessee, for the Appellant, William C. Spann.
Stephen S. Ogle, Nashville, Tennessee, for the Appellee, Robbie Whitehead.
OPINION
This appeal is before the Court on the technical record only (Tenn.R.App.P. Rule 24(a)
record) as we are favored with neither a transcript of the evidence pursuant to Tennessee Rule of
Appellate Procedure 24(b) nor a Statement of the Evidence pursuant to Tennessee Rule of Appellate
Procedure 24(c). To the extent that resolution of the issues on appeal depend on factual
determinations, the lack of a transcript or Statement of the Evidence is essentially fatal to the party
having the burden on appeal. Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn.Ct.App.1992). It is the
duty of the appellant to prepare a record which conveys a fair, accurate and complete account of what
has transpired in the trial court with respect to the issues that form the basis of the appeal. State v.
Boling, 840 S.W.2d 944, 951 (Tenn.Ct.Crim.App.1992). Mere statements of counsel, which are not
appropriate proffers or not effectively taken as true by the parties, cannot establish what occurred in
the trial court unless supported by evidence in the record. State v. Thompson, 832 S.W.2d 577, 579
(Tenn.Ct.Crim.App.1991).
Laboring under such limitations, we will address the issues based upon the record that is
before us without consideration of extraneous assertions made in brief and at oral argument which
are not supported by the record. A chronological history of this litigation, both in Alabama and in
Tennessee, is essential to an understanding of the issues in this case, and such chronological history,
as is shown by this record, establishes that the minor child, B.N.W., was born to Mark Whitehead
(“Father”) and Debra Whitehead (“Mother”) on December 28, 1998. The Whiteheads and B.N.W.
resided on the property of the paternal grandparents, Milton Whitehead (“Grandfather”) and Robbie
Whitehead (“Grandmother”).
The first order in the record was issued by the Juvenile Court of Lauderdale County,
Alabama, on February 15, 2001, following a pre-trial hearing on February 13, 2001. This Order
provides in pertinent part:
All parties to this action had been previously served. None of the
Respondents had filed an Answer or otherwise responded to the Petition. At the time
set for pre-trial hearing, neither of the Respondents, Debra Whitehead nor Mark
Whitehead appeared. The Court understands that Mark Whitehead is presently
incarcerated in the Lauderdale County Detention Center. The Court understands that
the Guardian ad litem, Heath Trousdale had sent letters to the parents requesting they
contact him to discuss the matters alleged in the Petition, however, neither parent had
contacted him prior to the pre-trial hearing.
The Petitioners, Milton and Robbie Whitehead appeared at the time set for
pre-trial hearing and advised the Court that they understood that neither the Mother
nor the Father intended to contest the custody of the minor children being placed with
them. The Court assumes this to be true as neither parent filed a response to the
Petition filed by the Petitioners. Based upon this, the Court ORDERS, ADJUDGES
and DECREES as follows:
1. Custody of the minor children, [D.R.W.], [D.P.W.] and [B.N.W.] are
hereby vested in the paternal grandparents, Milton Whitehead and Robbie
Whitehead. The paternal grandparents shall have the full custody of said children
and are hereby authorized and directed to act in any way necessary to effectuate the
best interest of said children.
2. The Mother is directed to prepare an Affidavit of Income and file it with
the Court for purposes of entering an Order regarding child support within fourteen
(14) days from the date of this order. The Father, who is presently incarcerated in the
Lauderdale County Detention Facility shall file an Affidavit of Income with the Court
no later than fourteen (14) days from the date of his release from the Lauderdale
County Detention Facility. Child support will be based upon the incomes of the
parties and in accord with a ARJA 32.
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3. The Court understands from the Petitioners that there have been several
instances of domestic violence between the Respondents. Based upon that, visitation
shall be at the discretion of the Petitioners, Milton Whitehead and Robbie Whitehead.
4. The parents shall cooperate in seeing that any items of personalty in the
possession of either Respondent which belongs to the minor children is promptly
provided to the Petitioners for the use and benefit of the minor children.
5. The Court further understands that there have been certain problems with
regard to substance abuse by the Respondents. The Court reiterates its directive to
the Mother and Father that they attend counseling sessions as directed by Riverbend.
If the parents comply with this, the Court will consider expanding the visitation rights
of the parents upon proper application to the Court.
Additional history is gleaned from an Order entered by the Juvenile Court of Lauderdale
County, Alabama, on August 19, 2003, which provides in relevant part:
This matter was set for hearing on July 15, 2003. The parties appeared with
counsel as did the Guardian Ad Litem. The Court met with counsel for the parties,
after which the counsel met with their respective parties. Certain matters were
agreed to and certain matters were reserved for the Court’s decision based upon the
discussions had in chambers and testimony at the subsequent hearing.
From the testimony, discussions, and the agreements, the Court finds that the
minor child, [B.N.W.] , a minor born 12-28-98, has primarily resided on the premises
where both her parents and paternal grandparents resided since her birth. The parents
of [B.N.W.] lived on the premises with their child until the death of the Father, Mark
Whitehead, on May 16, 2002. At some time after that, the Mother left the premises
and the child has resided on the premises with the paternal grandmother (the
grandfather, Milton Horton, has since passed away).
The grandmother also has custody of two half brother[s] to [B.N.W.],
[D.R.W.], and [D.P.W.], in that the Mother and Father of the children are deceased.
Mark Whitehead is the Father of all the children. Those children, as well, have
resided on the premises of the paternal grandparents for the majority of their lives.
By agreement, temporary custody of [B..N.W.] has been vested in the paternal
grandmother since July 17, 2001. The Mother has exercised visitation with the minor
child in increasing amounts since that time.
Due to the close relationship that the child has shared, most of her life, with
her grandmother and the fact that she has grown up with her half siblings, the Court
finds that the best interest of the minor child will be served with an Order granting
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visitation to the grandmother so that the child can continue to maintain her close
relationship with the grandmother and with her half siblings.
The Court reserves jurisdiction to continue monitoring progress in this cause
of action.
The parties announced to the Court that an agreement had been reached as to
custody and visitation of the minor child, but did not agree to how the visitation
exchanges would take place. The Court has considered the testimony and
agreements, ratifying the parties’ agreement as to custody of the minor child being
returned to the Mother, and further Orders that exchange of visitation shall continue
to at the McDonald’s at the intersection of Highway 72 and I-65 in Athens, Alabama.
The grandmother shall begin visitation on Thursday, August 21, 2003 at 5:00
p.m. and continue until Sunday, August 22, 2003 at 5:00 p.m.. After said visitation,
the grandmother shall have visitation every other weekend beginning at 5:00 p.m. on
Friday until 5:00 p.m. on Sunday. Regular visitation shall begin September 5, 2003,
and continue each and every other weekend until further Order fo the Court.
The grandmother shall have regular visitation by telephone with the minor
child. The grandmother may call the minor child two times per week during the
hours of 8:00 a.m. and 8:00 p.m.
The mother will be subject to random drug screens at the direction of the
Court.
Each party is responsible for paying one-half (½) of the Guardian Ad Litem
fees.
This Court shall retain jurisdiction over this matter and shall have a review
hearing on the 17th day of February, 2004, at 11:30 a.m. before the undersigned.
The mother had resided in Davidson County, Tennessee, before the July 13, 2003, hearing
that resulted in the August 19, 2003, Order of the Juvenile Court of Lauderdale County, Alabama.
She then took B.N.W. with her to Tennessee. She returned to Alabama, however, for the review
hearing set for February 17, 2004, in the Lauderdale County, Alabama, Juvenile Court. Following
that hearing, an order was entered providing:
This cause having come before the Court on a review, and all interested
parties being present, it is ORDERED, ADJUDGED and DECREED as follows:
1. That the full care, custody, and control of the above named minor child
is hereby awarded to the mother/plaintiff.
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2. The defendant/paternal grandmother is awarded visitation privileges
with said minor child in accordance with the “In-State Standard Visitation
Guidelines” incorporated by this Court and attached hereto as Exhibit A. The parties
shall continue to exchange the minor child for visitation as previously agreed.
3. Provisions of previous orders not specifically modified herein shall
remain in full force and effect.
DONE and ORDERED on this the 23 day of February 2004.
For reasons not disclosed by the record, Debra Whitehead filed a Petition to Enroll Foreign
Decree in the Juvenile Court of Davidson County, Tennessee, on April 14, 2004.1 This Petition
provided:
Comes now the Petitioner, Debra Whitehead, and respectfully alleges unto
the Court as follows:
1. That Petitioner is a resident of Hermitage, Davidson County,
Tennessee and resided at 2034 Nora Lane in Hermitage, Davidson County, Tennessee
37076 and has resided in Tennessee for over two (2) years. The minor child,
[B.N.W.], has resided in Tennessee since July 15, 2003. The Respondent is a
resident of Lauderdale County, Alabama and resides at 6395 Highway 157, Florence,
Alabama 35633.
2. That on February 23, 2004, in the Circuit Court of Lauderdale County,
Alabama, Juvenile Division, an order was entered in case #JU-2001-004.01 in regard
to the custody and visitation of [B.N.W.]. A copy of the described order
authenticated in accordance with the Acts of Congress and the statutes of Tennessee
is attached hereto as Exhibit A and incorporated herein by reference.
3. The order attached hereto as Exhibit A provided for the custody and
visitation between Debra Whitehead, the mother of the minor child, and Robbie
Whitehead, the paternal grandmother of the minor child. Mark Whitehead, the father
of the minor child, is deceased.
4. The Petitioner alleges that the order attached hereto as Exhibit A is
entitled to full faith and credit in the Courts of the State of Tennessee.
1
W e are informed by counsel for Robbie W hitehead in oral argument that the reason for this action by Debra
W hitehead was that she intended, after the Alabama decree was enrolled in Tennessee, to file a Petition to have the
Tennessee Court modify the visitation arrangement for Robbie W hitehead. The record before this Court discloses
nothing of this character.
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5. The Petitioner’s Affidavit setting forth the name and last known
address of the Respondent and Petitioner is attached as Exhibit B and incorporated
herein by reference.
6. There are no other states in which this order is registered.
WHEREFORE PREMISES CONSIDERED, PETITIONER PRAYS:
1. That proper process issue and be served upon the Respondent.
2. That after notice and hearing this Court order enrollment of the order
attached hereto as Exhibit A for enforcement of this foreign decree in this honorable
court.
3. That Petitioner be granted such further relief, both general and specific,
to which she is entitled.
On June 3, 2004, Robbie Whitehead filed her answer in the Juvenile Court of Davidson
County to the Petition seeking to enroll the Alabama judgment in Davidson County. This response
provides:
1. The respondent is without knowledge sufficient to admit or deny the
first sentence of paragraph 1 of the petition, and strict proof thereof is accordingly
demanded. The remaining allegations in paragraph 1 are admitted.
2. The allegations set forth in paragraph 2 of the petition are admitted;
however, the Alabama order speaks for itself.
3. The allegations set forth in paragraph 3 of the petition are admitted;
however, the Alabama order speaks for itself.
4. In response to the allegations set forth in paragraph 4 of the petition,
the respondent asserts that Tennessee lacks jurisdiction to entertain this matter under
the Uniform Child Custody Jurisdiction Act.
5. In response to the allegations set forth in paragraph 5 of the petition,
the respondent admits that an affidavit is attached to the copy of the petition that was
served upon her.
6. The respondent is without information sufficient to admit or deny the
allegations set forth in paragraph 6 of the petition, and strict proof thereof is
accordingly demanded.
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7. Any allegations contained in the petition that have not been admitted,
denied or explained are hereby generally denied.
5. It is denied that the petitioner is entitled to any of the relief she seeks
in her petition.
6. While the petitioner has requested that this Court enroll the Alabama
order for enforcement, she has not asserted that the respondent has violated any of
its provisions and has failed to request any affirmative relief. The petition in this
matter is a thinly veiled attempt to circumvent the jurisdiction of the Alabama court,
which just rendered the order that the petitioner seeks to “enforce” on February 23,
2004. Inasmuch as the petitioner seeks no affirmative relief, this matter is not ripe
for adjudication.
WHEREFORE, the respondent prays that the petition in this matter be
dismissed and that the costs of this cause be taxed to the petitioner.
On June 29, 2004, referee Alan Calhoun of the Davidson County Juvenile Court entered an
order acknowledging the Petition to Enroll and the Answer thereto, together with the jurisdictional
issues raised under the pleadings. He ordered briefs from the parties and rescheduled the hearing
for July 21, 2004.
So it is at this point in the Davidson County proceedings that we have a petition by the
mother naming only the paternal grandmother as a respondent seeking to enroll the February 23,
2004, order of the Juvenile Division of the Circuit Court of Lauderdale County, Alabama, and
seeking enforcement of the Alabama order in Tennessee. We then have the answer of the paternal
grandmother pointing out that the Petition to Enroll seeks no relief from the Alabama judgment, nor
any other affirmative relief but seeks only the enforcement of the Alabama order. The answer of the
grandmother further denies the jurisdiction of the Juvenile Court of Davidson County either to enroll
the Alabama judgment or to take jurisdiction for any other purpose.
Before the pending jurisdictional issues could be adjudicated, the State of Tennessee
Department of Children’s Services on June 30, 2004, filed a petition asserting that B.N.W. resided
in Davidson County, Tennessee, and was a dependent and neglected child. The petition asserts:
This Petitioner received a referral on June, 22 2004. Statements from the
referral stated indicated that the mother was abusing the prescription drug,
Oxycontin. That within two days she had ingested ten of fifteen pills that had been
prescribed to her. The referral also indicated the mother had used cocaine as well.
The referent stated that mother was being transported to Summit Hospital.
This Petitioner first interviewed Ms. Whitehead (mother) at Tennessee
Christian Hospital. She admitted to a history of cocaine use and a current abuse of
pain medication.
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Further investigation showed that the father of this child is deceased. A
history of this case shows an unfounded case from 2001 on an adult sibling.
This Petitioner next interviewed Mr. Spann (maternal grandfather). He stated
that he has been taking care of the mother and the child for the past two years. He
further stated that Ms. Whitehead has a history of drug abuse and mental illness. He
then stated that he would like to petition the court for the temporary custody of his
granddaughter.
Based on this initial investigation this Petitioner was able to enter into a
safety plan with the mother and the maternal grandfather. It will expire on July 2,
2004.
This Petitioner is requesting an adjudication and requests a change of custody.
The Department would request that custody of the minor child be granted to William
Calvin Spann, maternal grandfather. He is an appropriate party that will provide for
the health and safety of the child while her mother addresses her drug abuse issues.
On July 6, 2004, Davidson County Juvenile Referee Calhoun placed custody pendente lite
of B.N.W. in maternal grandfather, William C. Spann, of Davidson County.
On July 15, 2004, Honorable Mike J. Urquhart, attorney at law, filed a Notice of Appearance
on behalf of William C. Spann.
The case was heard by Juvenile Referee Alan Calhoun on July 20 and 21 of 2004 resulting
in an order issued on August 17, 2004, providing:
This matter came on for hearing on the 20th and 21st days of July, 2004,
before the Honorable Alan Calhoun, Referee, upon the briefs of the parties with
regard to jurisdictional issues under the Uniform Child Custody Jurisdiction and
Enforcement Act and the Parental Kidnapping Prevention Act, the motions of Robbie
Whitehead filed July 13, 2004, the argument of counsel and the entire record in this
action; whereupon, the Court ORDERED as follows:
1. Robbie Whitehead shall have visitation with the minor child,
[B.N.W.], on July 20, 2004.
2. For so long as William Calvin Spann has pendente lite custody of the
[B.N.W.], he shall comply with all provisions of the order entered February 24, 2004,
a copy of which is attached hereto as an exhibit and is incorporated herein by
reference, by the Juvenile Court for Lauderdale County, Alabama, regarding
visitation between Robbie Whitehead and [B.N.W.], except that henceforth Mr.
Spann and Robbie Whitehead shall meet to exchange the child at the Tennessee
Welcome Center on Interstate 65 at 6:30 p.m. on alternating Fridays beginning
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Friday, August 20, 2004, and meet to exchange the child again at 6:30 p.m. on
alternating Sundays.
3. Robbie Whitehead shall have visitation with [B.N.W.] for two weeks
beginning July 23, 2004, at 6:30 p.m., and ending on August 5, 2004, at 6:30 p.m.
Mr. Spann and Robbie Whitehead shall meet at the Tennessee Welcome Center on
Interstate 65 on these dates and at these times to exchange [B.N.W.].
4. The parties shall not discuss the case with [B.N.W.].
5. The Court shall communicate with Judge Larry Mack Smith and/or his
successor in office, in care of the Lauderdale County Courthouse, 200 South Court
Street, Florence, Alabama 35630, (256) 760-5825, pursuant to the provisions of the
Uniform Child Custody Jurisdiction and Enforcement Act.
6. The Court denies the motion of Robbie Whitehead praying that the
Court vacate its July 6, 2004, preliminary hearing order.
7. This Court is exercising temporary emergency jurisdiction of this matter
pursuant to section 36-6-219 of the Tennessee Code Annotated; however, the extent
of its jurisdiction remains disputed.
Between the hearing on July 20 and 21, 2004, and the entry of the order of August 16, 2004,
certain events apparently occurred which we can only glean from the allegations of certain petitions
and an unsigned order which appears in the record. On August 6, 2004, William C. Spann filed a
petition in the Juvenile Court of Davidson County asserting:
1. That on July 20, 2004 this matter was before the Honorable Alan
Calhoun regarding the domestication of an order of an Alabama
Court, granting Robbie Whitehead visitation of the minor child and
Robbie Whitehead’s attempt to vacate a subsequent placement of the
child with William Spann by this court due to allegations of drug use
by the mother.
2. All parties were present including Robbie Whitehead, at the
aforementioned hearing with the exception of the mother of the minor
child, Debbie Whitehead, who was represented by her attorney, The
Honorable L.R DeMarco.
3. That the mother and child have lived in Davidson County from July
2003 to present.
4. That in July 2003 mother had custody returned to her by the Alabama
Court, subject to a review hearing in February 2004.
5. That at the review hearing in February 2004 custody remained with
the mother and that Robbie Whitehead had visitation only.
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6. At all times relevant after July 2003 the child and mother lived and
resided in Davidson County Tennessee with William Spann.
7. The father of the child is deceased.
8. At the aforementioned hearing Referee Calhoun denied the motion of
Robbie Whitehead to vacate the order granting William Spann
custody of the child.
9. The Court ordered that Robbie Whitehead would be allowed to
exercise visitation pursuant to the order of the Alabama Court and
stated that the child would be returned to William Spann upon the
expiration of the Visitation by Robbie Whitehead pending further
orders of the Court.
10. Visitation was scheduled from July 23, 2004 to August 5, 2004.
11. The Court warned Robbie Whitehead that failure to return the child
would constitute “kidnapping.”
12. On August 5, 2004 at about 3:12 p.m. counsel for Robbie Whitehead
informed the undersigned that she would not be returning the child
pursuant to the order entered on July 20, 2004.
13. The reason given was that on or about July 19, 2004 the Alabama
Court granted Immediate Temporary Custody of the child to Robbie
Whitehead and therefore would not return the child to William
Spann.
14. That as of today the child has not been returned.
15. The Court on July 20, 2004 as agreed to by all counsel maintained
temporary jurisdiction of this matter pending further hearing
scheduled on August 18, 2004 and that this date was after the date of
the order entered by the Alabama Court.
16. That Robbie Whitehead failed to inform the Court that the order
entered by the Alabama Court was entered on July 19, 2004 in an
apparent attempt to mislead the court in order to gain an advantage in
the litigation.
17. That the actions of Robbie Whitehead constitute a violation of this
courts orders.
18. Further, the Guardian Ad Litem, Susanne McGowan spoke with the
child just prior to the child departing for visitation with Robbie
Whitehead and told her that she would be returning to live with
William Spann.
19. That the child is set to start school on August 16, 2004 and has been
enrolled.
20. That the actions of Robbie Whitehead are not in the best interest of
the child and are causing irreparable harm to the minor child.
21. That due to the dependant neglect allegations and the fact that no
custody case was pending at the time, this Court maintains exclusive
jurisdiction of this matter.
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22. That undersigned counsel has informed all parties that he is
attempting to have an emergency hearing on this matter and was
informed by all, except the Guardian Ad Litem that they could appear
today. The Guardian informed undersigned counsel she could appear
telephonically if the Court so granted.
Wherefore, the movant prays for the following:
1. That this matter be set for an emergency hearing on August 6, 2004.
2. That the Court enter the attached proposed order stating that all times
relevant and to further orders of this court as agreed to by the parties
of this Court and that said hearing be set for October 18, 2004 as
previously ordered.
3. That the court order Robbie Whitehead to immediately return the
child to the State of Tennessee and to William Spann at his residence
and no later then [sic] 5:00 p.m. on August 6, 2004.
4. That the Court impose sanctions to Robbie Whitehead to include but
not limited to the costs of this action, attorney fees for the Movant,
Debbie Whitehead, the Department of Child services and the
Guardian Ad Litem to be set at a later hearing.
5. That the Court authorizes William Spann to take any action to include
obtaining an arrest warrants [sic] for violation of the appropriate
statutes.
An order that is unsigned appears in the record whereby Honorable W. Scott Rosenberg,
Referee, held:
This matter came on for hearing on the 6th day of August, 2004, before the
Honorable W. Scott Rosenberg, Referee, upon the emergency motion filed August
6, 2004, by William Calvin Spann seeking an order requiring Robbie Whitehead to
return the minor child, [B.N.W.], to Tennessee from Alabama; whereupon, the
Honorable W. Scott Rosenberg, Referee, and the Honorable Alan Calhoun, Referee,
conferred via telephone with the Honorable Larry Mack Smith, Judge of the Juvenile
Court for Lauderdale County, Alabama. After this telephone conference, the Court
was of the opinion that the aforementioned emergency motion should be denied. It
is, accordingly, ORDERED that the the [sic] emergency motion filed August 6, 2004,
by William Calvin Spann seeking an order requiring Robbie Whitehead to return the
minor child, [B.N.W.], to Tennessee from Alabama is hereby DENIED. The
Honorable Alan Calhoun, Referee, shall draft a separate order setting forth additional
ruling by the Court. All other matters are reserved.
ENTER this the ________ day of August, 2004.
There appears in the record a Notice of Appeal to the Juvenile Court from this order filed by
the Department of Children’s Services and reciting:
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Comes the State of Tennessee, Department of Children’s Services, by and
through its undersigned counsel, and respectfully notifies this Honorable Court of it’s
notice of appeal of an order issued on August 6, 2004 by Special Referee S.
Rosenberg and to request an emergency hearing on the above-mentioned minor child
regarding jurisdiction.
The Department of Children’s Services filed an Emergency Petition to
adjudicate dependency and neglect on June 30, 2004. This Court entered an order
granting the removal of legal custody of the minor child from her mother, Debra
Whitehead on that day. On July 6, 2004 this Court took jurisdiction when it found
probable cause and upheld the Department’s removal. As a least drastic alternative
the Court found William Spann to be an appropriate placement and granted
temporary legal custody to him.
Movant was notified of an emergency motion filed on behalf of William
Spann, on August 6, 2004. (See attached Exhibit A.). Present at the hearing were
Dana Garner, attorney for DCS, Mike Urquhart, attorney for Mr. Spann, Stephen
Ogle, attorney for paternal grandmother, Robbie Whitehead. Counsels that was not
present but had been notified by Attorney Urquhart were the Guardian ad Litem,
Susie McGowan, and Ralph DeMarco, attorney for the mother, Debra Whitehead.
The only issue before the court that day was a request for the grandmother to obey
the Court’s July 21, 2004 order to return the child to Mr. Spann. (At this time
Movant is unable to provide a copy of such order. Attorney Ogle was instructed by
the Court to draft such order but Movant has not received a filed copy of such order.)
At the August 6th hearing, the Court ordered that the paternal grandmother,
Robbie Whitehead return the physical custody of said child to her legal guardian,
William Spann immediately.
The Court requested Attorney Urquhart to draft the order immediately. The
Court stated that the order was going to be signed before the end of the day. Attorney
Urquhart requested that Attorney Ogle call his client and inform her of the order.
Attorney Urquhart announced that he would prefer Attorney Ogle make an attempt
at gaining cooperation from Ms. Whitehead because if she failed to obey the order,
he would have an arrest warrant issued for Ms. Whitehead immediately. The hearing
was adjourned.
Approximately two hours later Movant received a phone message from
Attorney Urquhart stating that the Court had reversed its previous order after
receiving notice from a family court judge in Alabama that such court would be
retaining jurisdiction of the minor’s child custody case. To the best of Movant’s
information, knowing and belief no order of these finding had been reduced to
writing at this time. The Department does not have a copy of such order.
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Movant would request that in as much Movant did not receive notice of a
subsequent hearing regarding the reversal of the original order by Special Referee S.
Rosenberg, Movant respectfully requests that a full hearing on the issue of
jurisdiction be set immediately. The issue of jurisdiction was decided without notice
to the Department. For cause, Movant would state that jurisdiction was not an issue
stated in the emergency motion that was heard on August 6, 2004.
Additionally Movant has a current petition pending in this Court and is to be
adjudicated on October 13, 2004. Movant would argue that this Court retains
jurisdiction over said minor child pursuant to the petition filed by the Department on
June 30, 2004 and based on the actions of the Court on July 6, 2004. Further the
current petition has not been disposed of properly.
Movant would respectfully request that a hearing on these matters be set
immediately in order to insure the safety and well-being of the minor child,
[B.N.W.].
On August 19, 2004, Robbie Whitehead filed in the Davidson County Juvenile Court a
Request for Registration and Enforcement of Alabama Decrees which provided:
Comes now Robbie Whitehead, by and through counsel, pursuant to section
36-6-229 of the Tennessee Code Annotated, and MOVES this Court to enter an order
registering and enforcing the orders of the Juvenile Court for Lauderdale County,
Alabama, regarding the minor child, [B.N.W.], which are attached hereto and
incorporated herein by reference and are authenticated in accordance with the acts of
Congress and/or the statutes of this State. Further, Robbie Whitehead, through
counsel, states under penalty of perjury that to the best of her knowledge these orders
have not been modified since the most recent order entered July 19, 2004, but that
the Alabama court will conduct a hearing regarding the child on August 20, 2004.
A copy of the order resulting from that hearing authenticated in accordance with the
acts of Congress and/or the statute of this State will be filed with the Court when
counsel has received it.
Notice is hereby given to the persons served with this request (Debra
Whitehead and William Calvin Spann, whose address is 2034 Nora Lane, Hermitage,
Tennessee 37076, are served via their respective attorneys inasmuch as they are
already parties to this proceeding.), (1) a registered determination is enforceable as
of the date of the registration in the same manner as a determination issued by a court
of this state; (2) a hearing to contest the validity of the registered determination must
be requested within twenty (20) days after the service of this notice; and (3) failure
to contest the registration will result in confirmation of the child-custody
determination and preclude further contest of the determination with respect to any
matter that could have been asserted.
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Filed with this petition and exemplified by the Juvenile Court of Lauderdale County,
Alabama, is an order dated July 19, 2004, providing:
This matter having come before the Court on the Petitioner’s Motion for
Immediate Temporary Custody and the Court having considered the same, it is
therefore,
ORDERED, ADJUDGED and DECREED, that temporary custody of the
minor child, [B.N.W.] is vested in the Petitioner, Robbie Whitehead, pending a
hearing held in this matter.
It is further, ORDERED, ADJUDGED and DECREED, that is matter is set
down for a hearing on the 20th day of August, 2004, at 10:30 o’clock, a.m. in
courtroom number four of the Lauderdale County Courthouse, located in Florence,
Alabama.
DONE and ORDERED, this the 19 day of July, 2004.2
Various other motions were filed resulting in some confusion in the record, much of which
is allayed by an order entered on August 30, 2004, by Juvenile Referee Alan Calhoun providing:
This matter came before the Court due to several different pleadings. The
mother, Ms. Debra Whitehead, filed a petition to register a foreign decree. Ms.
Debra Whitehead is the legal custodian of [B.N.W.]. This petition is opposed by the
paternal grandmother, Robbie Whitehead who, pursuant to a long history of court
proceedings in Alabama has court-ordered visitation with the child. While that
matter was pending, the Tennessee Department of Children’s Services filed an
emergency removal petition alleging that the mother had overdosed on drugs. Upon
a waiving of the preliminary hearing on the emergency removal by the mother, the
Department of Children’s Services placed temporary custody of [B.N.W.] with the
maternal grandfather, Bill Span[n].
Judge Larry Mack Smith vested temporary custody of [B.N.W.] with Robbie
Whitehead in July of 2001. That temporary order remained in effect until July of
2003 at which point Judge Smith returned custody to the Debra Whitehead, made her
subject to random drug screens, granted visitation to the paternal grandmother, and
reserved jurisdiction over the matter in order to “continue monitoring progress in this
cause of action.” The Court reviewed the case in February of 2004 at which point the
Court returned full legal custody to Ms. Debra Whitehead while also ordered that the
previously ordered visitation continue. The Court further indicated that all issues not
2
Also exemplified by the Alabama court and filed with the August 19, 2004, Petition by Robbie W hitehead are
the previous orders of the Alabama Juvenile Court from which the history of the Alabama litigation has been gleaned.
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in conflict with the above from its prior rulings remained in effect. It is not in dispute
that Ms. Debra Whitehead moved to the Nashville area in roughly July of 2003.
Ms. Debra Whitehead filed her “Petition to Register Foreign Decree” on April
14, 2004, not even two months after the last court date in Alabama. Ms. Robbie
Whitehead retained counsel to oppose the registration. The Court issued a
scheduling order for responsive briefs. While the parties were in the midst of this
process, DCS filed their petition. The placement of temporary custody with Mr.
Spann occurred on July 6, 2004 by Special Referee Matthew Mayo. On July 21,
2004, the parties appeared before Referee Calhoun. This Court indicated that it
retained emergency jurisdiction under UCCJEA encapsulated in T.C.A. §36-6-219.
On that date, the Court indicated that it would communicate with its counterpart in
Alabama and further indicated that the visitation provision with Ms. Robbie
Whitehead would remain in effect while the child would remain as previously
ordered with Mr. Span[n]. The Court was unaware of any “new” custody order
issued by Judge Larry Mack Smith.
Evidently, Judge Larry Mack Smith issued a custody order on July 19th,
2004. By that order, the Court placed legal custody of [B.N.W.] with Robbie
Whitehead on an emergency and ex parte basis. As it indicated it would, this Court
communicated with the Alabama Court. In fact, two different conversations
occurred. The first occurred shortly after the July 21, 2004 hearing. During that
conversation, it was this Court’s understanding that this Court would retain
emergency jurisdiction over the matter pending a resolution of the overarching
jurisdictional question. At that time, however, Judge Smith indicated that he did not
have his file before him. The second conversation occurred when the parties
appeared before Ref. Rosenberg on August 6, 2004. It should first be noted that
Referee Calhoun was at home, on paternity leave, and unaware the case had appeared
on an emergency basis before Ref. Rosenberg. Upon being informed of this, the
Court again communicated with Judge Smith. However, no record was made of this
conversation.
Judge Smith indicated that he was very familiar with the family and the issues
in the case due to its long history in Alabama. Furthermore, it was the very concern
about drug usage that factored into his jurisdictional keeping clause. He also
indicated that he previously (and recently) found Ms. Robbie Whitehead’s home
appropriate for [B.N.W.]. It is noted by this Court that Robbie Whitehead fulfills the
definition of a “Person acting as a parent” under the UCCJEA. Part of the purpose
of the UCCJEA is to ensure that a custody dispute should be heard in the state which
can best decide the case in the interest of the child. Put simply, upon consideration
of T.C.A. 36-6-216 and 36-6-218, both Courts agreed that Alabama is the proper
court of record. Accordingly, this Court will allow the Alabama custody order to
remain intact.
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SO ORDERED on the 30th day of August, 2004 nunc pro tunc to August 6, 2004.
An appeal was taken by Spann and Debra Whitehead to Juvenile Court Judge Betty Adams
Green from the August 6, 2004, actions of Referees Calhoun and Rosenberg which are reflected in
the nunc pro tunc order of August 30, 2004, filed by Alan Calhoun and that matter came on to be
heard before Judge Green on August 10, 2004.3 The order by Judge Green provided:
This matter came on for hearing on the 10th day of August, 2004, before the
Honorable Betty Adams Green, Judge, upon the notices of appeal of the ruling of the
Honorable Alan Calhoun, Referee, and the Honorable W. Scott Rosenberg, Referee;
whereupon, the Court took this matter under advisement and allowed the parties to
submit briefs on the issues in this case arising under the Uniform Child Custody
Jurisdiction and Enforcement Act.
It is, accordingly, ORDERED as follows:
1. The orders of the Honorable Alan Calhoun, Referee, and the
Honorable W. Scott Rosenberg, Referee, in this matter, which are hereby
incorporated into this order by reference, are hereby confirmed by the Honorable
Betty Adams Green, Judge, pursuant to the provisions of section 37-1-107 of the
Tennessee Code Annotated and Rule 4 of the Tennessee Rules of Juvenile Procedure.
2. The Honorable Betty Adams Green, Judge of the Juvenile Court for
Davidson County, Tennessee, has spoken by telephone with the Honorable Larry
Mack Smith, Judge of the Juvenile Court for Lauderdale County, Alabama, pursuant
to the provisions of Uniform Child Custody Jurisdiction and Enforcement Act. The
judges agreed that the order of the Alabama court entered February 24, 2004,
provided that all previous orders of that court remained in full force and effect,
including the provisions of the Alabama court’s order entered August 19, 2003,
which stated, “The Court reserves jurisdiction to continue monitoring progress in this
cause of action.” The aforementioned Alabama order also stated, “This Court shall
retain jurisdiction over this matter and shall have review hearing on the 17th day of
February, 2004, at 11:30 a.m. before the undersigned.” Judge Smith stated that he
reserved jurisdiction over this matter in his Court due to his concern that the mother
of the minor child, Debra Whitehead (hereinafter “mother”) would relapse into drug
abuse, which was what led to the removal of her child by the Alabama court as early
as 2001. The judges of both courts agreed that the child has extensive ties to the
State of Alabama inasmuch as she resided from her birth to 2003 at the residence of
her paternal grandmother, Robbie Whitehead (hereinafter “grandmother”), in
Alabama and continued to visit her grandmother in Alabama on alternating weekends
after the mother moved with the child to Tennessee in 2003. The mother and the
3
The order reflecting this hearing before Judge Green was actually signed by Judge Green and entered on
October 18, 2004.
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child are represented in the Alabama by counsel and a guardian ad litem,
respectively, and the mother is currently in treatment for her drug abuse in Alabama
according to her Tennessee counsel.
3. This court declines to exercise jurisdiction over any custody
determination in this matter and hereby defers such issues to the Juvenile Court for
Lauderdale County, Alabama; however, the Tennessee Department of Children’s
Services (hereinafter “Department”) may proceed on its petition alleging that the
mother has caused the minor child to be a dependent and neglected child within the
definition set forth at section 37-1-102(b)(12) of Tennessee Code Annotated. This
Court shall transfer any further proceedings involving the custody determination
regarding this child to the Juvenile Court for Lauderdale County, Alabama.
4. This Court is displeased by the conduct of the parties in failing to
comply with the existing orders of both the Alabama court and this Court.
Specifically, William Calvin Spann failed to honor the provisions of the Alabama
court’s orders regarding the child’s visitation with her grandmother, and Robbie
Whitehead failed to honor the provisions of this Court’s order requiring her to return
the child to Tennessee after this Court ordered that such visitation take place. This
Court admonishes the parties to this litigation that no litigant may thumb his or her
nose at the orders of any court dealing with the custody of this minor child. It is the
fervent hope of this Court that the parties will put aside their own interests, focus
instead upon what is best for the minor child and comply with whatever visitation
regimen the Alabama court orders. It is clear that the parties in this case all love
[B.N.W.], and she is entitled to the love of all of the members of her family on both
sides.
5. This Court finds that custody of [B.N.W.] is currently vested in Robbie
Whitehead pursuant to the provisions of the Alabama court’s order entered July 19,
2004, and that a hearing is currently set in the Alabama court with regard to this child
on October 6, 2004. This Court shall defer to the Alabama court with regard to
whatever custody determination the Alabama court makes upon its hearing regarding
the child.
On October 29, 2004, Robbie Whitehead filed a copy of the order of the Juvenile Court of
Lauderdale County of October 13, 2004, with the Juvenile Court of Davidson County together with
a Notice of Filing which provided:
Comes now Robbie Whitehead, by and through counsel, and gives notice of
the filing of the order of the Juvenile Court for Lauderdale County, Alabama, entered
October 13, 2004. The aforementioned order set a hearing regarding the minor child,
[B.N.W.], in the Alabama court for November 23, 2004, at 11:00 a.m. Also filed
herewith is a copy of the order of service and return of the Alabama court reflecting
that Debra Whitehead, the mother of the minor child, was served with process in the
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Alabama custody proceeding on October 20, 2004, at Restoration Ranch in
Tuscumbia, Colbert County, Alabama, where she has been since she entered
treatment shortly after the removal of the minor child from the mother by the
Tennessee Department of Children’s Services in June 2004.
William Spann and Debra Whitehead filed timely Notices of Appeal.4
The first of many jurisdictional problems addressing the Court is the problem of our own
jurisdiction given the present posture of this case. When reserving jurisdiction over the DCS
dependent and neglected child petition in its Final Order entered October 18, 2004, the Juvenile
Court made no designation of finality as to all other issues and parties under Tennessee Rules of
Civil Procedure 54.02. Whatever problems there are in this case as to finality, considerations of
judicial economy and the avoiding of piecemeal appeals mandate suspension of the final judgment
requirement in this case. Decision on the appeal at bar may well, under the facts of this case, render
moot the still pending dependency and neglect proceedings. We will, therefore, suspend the finality
requirements of Tennessee Rules of Civil Procedure 54.02 and proceed to a consideration of the
merits of this appeal. Bayberry Assoc. v. Jones, 783 S.W.2d 553, 559 (Tenn.1990); Rector v.
Halliburton, No. M1999-02802-COA-R3-CV, 2003 WL 535924, at *3 (Tenn.Ct.App. Feb. 26,
2003).
This appeal involves the Tennessee version of the Uniform Child Custody and Jurisdiction
and Enforcement Act (Tenn.Code Ann. § 36-6-201 et seq.). References in the Tennessee Act to “this
part” refers to the entirety of the Uniform Statute appearing from Tennessee Code Annotated 36-6-
201 through Tennessee Code Annotated 36-6-243. (See Tenn.Code Ann. § 36-6-201.)
The only two states involved in the litigation at bar are Tennessee and Alabama, with
Alabama also having adopted, effective January 1, 2000, the Uniform Child Custody Jurisdiction
and Enforcement Act (Code of Alabama section 30-3B-101 et seq.).
An extensive and informative discussion of the Uniform Act appears in an annotation entitled
“Construction and Operation of Uniform Child Custody Jurisdiction and Enforcement Act” in 100
A.L.R. 5th, at 1-65. The Tennessee version of the Uniform Act was discussed at length by this Court
in Cliburn v. Bergeron, Nos. M2002-01386-COA-R3-CV, M2001-03157-COA-R3-CV, 2002 WL
31890868 (Tenn.Ct.App. Dec. 31, 2002) (no perm. app. filed).
Basically, under the Uniform Act, there are four (4) types of initial child custody jurisdiction,
those being home state jurisdiction, significant connection jurisdiction, jurisdiction by reason of
4
The Tennessee Department of Children’s Services has not appealed, and on May 11, 2005, DCS filed a Notice
with this Court that the issues raised on appeal did not directly involve the Department of Children’s Services and that
no brief or argument would be presented by the Department. The Final Order of the Juvenile Court did not adjudicate
the dependent and neglected child issues presented by the Department of Children’s Services, but instead allowed the
Department to proceed on its petition in the Juvenile Court.
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declination of jurisdiction, and default jurisdiction. Tenn.Code Ann. § 36-6-216.5 Since we have
determined that Tennessee Code Annotated sections 36-6-221 and 36-6-222 are outcome
determinative of all jurisdictional questions, no extensive discussion of other provisions of the
Uniform Act is necessary. We do not have in this case competition between states as to which state
has jurisdiction, but rather agreement of both states that Alabama has jurisdiction. The Juvenile
Court of Davidson County has deferred to the jurisdiction of the Juvenile Court of Lauderdale
County, Alabama, where extensive proceedings occurred predating the April 14, 2004, Petition filed
in Tennessee. Appellate review of the action of a trial court in declining to exercise jurisdiction
under Tennessee Code Annotated section 36-6-222 (or Alabama section 30-3B-207) is limited to a
determination of whether or not the trial court abused its discretion. Shanoski v. Miller, 780 A.2d
275, 279 (Me.2001).
Tennessee Code Annotated section 36-6-222 provides:
36-6-222. Declining jurisdiction — Inconvenient forum. — (a) A court of this
state which has jurisdiction under this part to make a child-custody determination
may decline to exercise its jurisdiction at any time if it determines that it is an
inconvenient forum under the circumstances and that a court of another state is a
more appropriate forum. The issue of inconvenient forum may be raised upon
motion of a party, the court’s motion, or request of another court.
(b) Before determining whether it is an inconvenient forum, a court of this state
shall consider whether it is appropriate for a court of another state to exercise
jurisdiction. For this purpose, the court shall allow the parties to submit information
and shall consider all relevant factors, including:
(1) The length of time the child has resided outside this state;
(2) The distance between the court in this state and the court in the state that
would assume jurisdiction;
(3) The relative financial circumstances of the parties;
(4) Any agreement of the parties as to which state should assume jurisdiction;
(5) The nature and location of the evidence required to resolve the pending
litigation, including testimony of the child;
(6) The ability of the court of each state to decide the issue expeditiously and
the procedure necessary to present the evidence;
(7) Whether domestic violence has occurred and is likely to continue in the
future and which state could best protect the parties and the child; and
(8) The familiarity of the court of each state with the facts and issues in the
pending litigation.
(c) If a court of this state determines that it is an inconvenient forum and that
a court of another state is a more appropriate forum, it shall stay the proceedings
upon condition that a child-custody proceeding be promptly commenced in another
designated state and may impose any other condition the court considers just and
proper.
5
Added to these bases is Temporary Emergency Jurisdiction provided by Tenn.Code Ann. § 36-6-219.
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(d) A court of this state may decline to exercise its jurisdiction under this part
if a child-custody determination is incidental to an action for divorce or another
proceeding while still retaining jurisdiction over the divorce or other proceeding.
Tenn.Code Ann. § 36-6-222.
The right of a trial court to decline jurisdiction includes all forms of jurisdiction authorized
by Tennessee Code Annotated section 36-6-216 and “Emergency temporary jurisdiction” under
Tennessee Code Annotated section 36-6-219, since all such bases of jurisdiction exist under “this
part.”
Addressing this same question, the Supreme Court of Maine held:
The question before us is not whether the North Carolina court committed
error. Our concern is whether the Maine District Court exceeded the bounds of its
discretion in declining to exercise jurisdiction. We review a decision to decline to
exercise jurisdiction for reason of inconvenient forum for abuse of discretion. Alley
v. Parker, 1998 ME 33, ¶ 6, 707 A.2d 77, 79.
The UCCJEA provides specific factors to be considered by a court with
continuing exclusive jurisdiction in determining whether it is the appropriate forum
or whether another state is the more appropriate forum. 19-A M.R.S.A. § 1751(2).
The first listed factor is whether domestic violence has occurred and which state can
best protect the parties and the child. Id. § 1751(2)(A). There was no evidence of
domestic violence in this case, and thus, this factor has no bearing on the matter.
The second factor is “[t]he length of time the child has resided outside
[Maine].” Id. § 1751(2)(B). The court noted that the child had lived in North
Carolina since she was less than a year old and had spent approximately 80% of her
time in North Carolina.
The court did not discuss the third factor, which is the distance between the
two states. Id. § 1751(2)(C). Although Shanoski had pointed out to the court that the
distance is 900 miles, he did not raise any issue about the distance except for the
expense of travel, and he has made no argument in this Court concerning this factor.
Expense is a concern in the fourth factor which is the parties’ “relative
financial circumstances.” Id. § 1751(2)(D). The court did not discuss this factor,
possibly because there was so little evidence on it. The evidence before the court was
that Shanoski is an attorney with a substantial education debt. Neither his verified
opposition nor Miller’s affidavit gave Shanoski’s income. Miller’s income was
approximately $25,000 annually, and her parents, who are described as wealthy by
Shanoski, have assisted her with litigation costs. Before this Court, Shanoski does
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not make any argument that the financial facts demonstrate that Maine should
exercise jurisdiction.
The fifth factor is whether there is “[a]ny agreement of the parties as to which
state should assume jurisdiction.” Id. § 1751(2)(E). The 1997 referee’s report stated
that the parties had agreed that Maine had jurisdiction over the divorce and the
ordered reference for the unresolved 1998 visitation. On its face, however, that
agreement is limited to the divorce itself and the unresolved 1998 visitation. It was
not an agreement that Maine would exercise jurisdiction in all future disputes, nor
was it an agreement to arbitrate all future disputes. The second referee’s report
contains no agreement regarding jurisdiction or arbitration; the parties were ordered
to arbitrate future disputes.
The sixth factor deals with the “nature and location of the evidence” for the
custody dispute. Id. § 1751(2)(F). The court found that more information regarding
the child was in North Carolina than Maine. The court stated that “care providers,
teachers, and others who have had significant and longstanding contact” with the
child are in North Carolina. Because the dispute between the parties centered on the
disruption that visitation may have on the child’s education, it was particularly
appropriate that the court consider that teachers’ testimony may have a bearing on
the outcome. The court did not ignore the fact that Maine witnesses may also have
testimony as it suggested that the Maine witnesses could testify by deposition or
telephonically.
The next factor concerns the respective courts’ abilities to decide the case
expeditiously. Id. § 1751(2)(G). Shanoski argues that Maine can act more fairly and
expeditiously than North Carolina because Maine allows parties and witnesses to
appear and testify by telephone. He states that the North Carolina court would not
let him appear by telephone for the oral argument on his motion to dismiss.
Shanoski, however, was acting pro se in that matter. There was no evidence that
North Carolina would not allow Maine witnesses to testify telephonically. The
Maine court found that more witnesses who have significant information about the
child and her circumstances are located in North Carolina. This fact implies that it
would be more expeditious for the North Carolina court to schedule a hearing.
The final factor is the familiarity of each court with the facts and issues. Id.
§ 1751(2)(H). Although the Maine court did not discuss this factor, the voluminous
file indicates that the Maine court has been presented with more of the issues than the
North Carolina courts.
Shanoski also makes a general argument, regarding all of the factors, that the
court should have addressed each factor, made specific findings of fact on each
factor, and concluded which factors weighed in favor of or against declining to
exercise jurisdiction. The inconvenient forum statute, however, does not expressly
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require the court to make findings of fact and conclusions of law for each factor. The
statutory requirement is for a court to consider the factors. Id. § 1751(2). We have
not, by case law, required trial courts to specifically enumerate their findings on each
factor in those situations in which there are statutory factors to be considered. See
MacCormick v. MacCormick, 513 A.2d 266, 268 (Me.1986) (stating trial court not
required to give detailed findings on each statutory factor concerning best interests
of children). We require trial courts to make findings that are sufficient to inform the
parties of the court’s reasoning and sufficient for effective appellate review. Dargie,
2001 ME 127, ¶ 2, 778 A.2d at 353.
In this case, the court found that the child had spent 80% of her life in North
Carolina and that her teachers, care providers, and others who had spent significant
time with her were located in North Carolina. These facts related to three of the
statutory factors: (1) the length of time the child has lived outside Maine, 19-A
M.R.S.A. § 1751(2)(B); (2) the nature and location of the evidence, id. § 1751(2)(F);
and (3) the ability of each court to decide the case expeditiously, id. § 1751(2)(G).
We are not persuaded that the court ignored evidence regarding other factors or that
the court gave improper weight to the factors it discussed. The court’s thoughtful
discussion was sufficient to inform the parties of the basis of its decision and
sufficient for us to perform our function of appellate review.
The Maine court determined that because of the length of time that the child
had lived in North Carolina and because more of the evidence relating to the child
was in North Carolina, Maine was an inconvenient forum and North Carolina was the
more appropriate forum. We cannot conclude that the Maine court exceeded or
abused its discretion in making that determination.
Shanoski, 780 A.2d at 279-81.
The superior court of Connecticut in a New York-Connecticut jurisdictional context
addressed what appeared to be mutual deference between courts. In Lord v. Lord, No.
FA970348367S, 2001 WL 1202614 (Conn. Super. Ct. Sept. 14, 2001), a couple born and raised in
New York and married in that state moved to Connecticut in 1996 where their child was born. Nine
months after the birth of the child, the mother moved back to New York with the child. In a
Connecticut divorce action of July 29, 1998, the mother received legal custody of the child pursuant
to the court-approved agreement of the parties. In March of 2000 the mother filed a New York
action seeking to modify the Connecticut decree with father asserting that Connecticut had
continuing jurisdiction under the Uniform Child Custody Jurisdiction Act. (Predecessor to the
Uniform Child Custody Jurisdiction and Enforcement Act.) The New York court declined to
exercise jurisdiction recognizing Connecticut continuing jurisdiction over matters of custody but
dismissing the New York petition without prejudice observing:
If the Connecticut declines jurisdiction and defers to the courts of New York,
this Court will entertain an application by either party for modification of the custody
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and/or visitation provisions of the divorce judgment. Absent such a specific
determination by the Connecticut court, this Court declines to proceed therein.
Lord, 2001 WL 1202614, at *2.
In acknowledging that the Connecticut court had continuing jurisdiction of the custody case
but declining to exercise such jurisdiction, the Connecticut court held:
Section 13 of the UCCJEA includes an express “continuing exclusive
jurisdiction” rule which states: (a) Except as otherwise provided in section 15 of this
Act, a court of this state which has made a child custody determination pursuant to
sections 12 to 14, inclusive, of this act, has exclusive, continuing jurisdiction over
the determination until: (1) 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; or (2) a court of this state determines that (A) this state is not the
home state of child, (B) a parent or a person acting as a parent continues to reside in
this state but the child no longer has a significant relationship with such parent or
person, and substantial evidence is no longer available in this state concerning the
child’s care, protection, training, and personal relationships.
Under Section 13, this state is not deprived of continuing, exclusive
jurisdiction under (1) above since the plaintiff continues to reside here. Nor is it
deprived of such jurisdiction under (2) above. Clearly, New York has become
Bridgette’s home state. It cannot, however, be said her relationship with the plaintiff,
who continues to reside here, is no longer significant although this court finds
substantial evidence is no longer available here concerning her care, protection,
training and personal relationships. Her family is almost exclusively in New York
as are her school, her treating doctor(s), her neighbors, her friends, and her medical
and education records. Bridgett’s only present connection with Connecticut is that
her father resides here. Thus, New York has the maximum contact concerning the
child’s present and future care and protection. While there is some visitation in this
state on a monthly basis, most visitation is scheduled to take place in New York and
the plaintiff-father does not play an active role in Bridgete’s daily life so as to
establish a significant connection to Connecticut or provide substantial evidence
here. Bridgette has no childhood friends here, knows none of her dad’s neighbors,
does not attend school here, is not medically treated here, and is not enrolled in any
organized activities here. Essentially, her only ties to this state are the occurrence of
her birth, a short residency, and her father’s continued residency.
While the defendant’s argument this court lacks continuing jurisdiction is
attenuated, more persuasive is her second argument that this court should decline to
exercise jurisdiction based upon the “inconvenient forum” provision of the UCCJEA.
Section 18(a) provides, “A court of this state which has jurisdiction under this Act
to make a child custody determination may decline to exercise its jurisdiction at any
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time if it determines that it is an inconvenient forum under the circumstances and that
a court of another state is a more appropriate forum.” Section 18(b) provides:
In determining whether a court of this state is an inconvenient forum
and that it is more appropriate for a court of another state to exercise
jurisdiction, the court shall allow the parties to submit information
and shall consider all relevant factors including: (1) whether family
violence has occurred and is likely to continue in the future and which
state could best protect the parties and the child; (2) the length of time
the child has resided outside this state; (3) the distance between the
court in this state and the court in the state that would assume
jurisdiction; (4) the relative financial circumstances of the parties; (5)
any agreement of the parties as to which state would assume
jurisdiction; (6) the nature and location of the evidence required to
resolve the pending litigation, including testimony of the child; (7)
the ability of the court of each state to decide the issue expeditiously
and the procedures necessary to present the evidence; and (8) the
familiarity of the court of each state with the facts and issues in the
pending litigation.
...
A consideration of these factors dictates a finding Connecticut should decline
jurisdiction under these provisions. While this case has no history of family violence
and despite the Agreement’s provision this state will retain jurisdiction, the child has
resided outside the state since August of 1997 and was a resident of Connecticut for
a mere nine (9) months; the distance between this court and the family court in
Suffolk County, New York, is approximately ninety (90) miles-not sufficient to make
a meaningful difference. Although the plaintiff had earlier earned substantially more
income than did the defendant, he now claims to earn only slightly more than does
the defendant in her $47,000 a year teaching position; the parties’ financial positions
are therefore irrelevant. The couple’s agreement Connecticut would retain
jurisdiction is also irrelevant - particularly since this court has subject matter
jurisdiction. Virtually all of the evidence-both by testimony and by way of
documentation-resides in New York. While highly unlikely this not-yet five-year-old
child’s testimony will be required, her location in New York suggests any court
ordered custody/visitation evaluation or mediation should occur there. Clearly, the
court in both states is equally competent to decide the pending issues. While this
court presently has greater familiarity with the facts and issues, transcripts,
memoranda, and the recommendations of family services in New York will provide
sufficient guidance for the New York court’s eventual orders. Further, this court
remains available for any communication that court might find informative. Finally,
New York has expressed a willingness to assume jurisdiction if this state declines to
exercise the same.
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This court finds there is subject matter jurisdiction but declines to exercise
the same on the ground of inconvenient forum. Because the UCCJA provision for
dismissal of the Connecticut action when this state determines it is an inconvenient
forum (Connecticut General Statutes § 46b-97(e)) was not carried over into the new
legislation, the defendant’s motion to dismiss is denied. Her motion to decline
jurisdiction is granted.
Lord, 2001 WL 1202614, at *2-4.
Very educational decisions relative to the UCCJEA are Welch-Doden v. Roberts, 42 P.3d
1166 (Ariz.Ct.App.2002) and S.W. v. Duncan, 24 P.3d 846 (Okla.2001). These cases, however, do
not address the declining of jurisdiction under the UCCJEA, but rather a contest among jurisdictions
as to which court in fact has jurisdiction. These cases generally involve the preference for “home
state” jurisdiction under the UCCJEA as to “initial” custody jurisdiction but also recognize as to
modification of an existing custody order, “home state” jurisdiction status does not override
continuing jurisdiction in the absence of a determination by the “continuing jurisdiction” court that
it no longer has exclusive continuing jurisdiction or that another court would be a more convenient
forum. S.W., 24 P.3d at 856-57.
Another carefully reasoned decision involving “home state ” jurisdiction and an unsuccessful
effort by one “home state” jurisdiction to bestow “home state” jurisdiction on another state is In re
McCoy, 52 S.W.3d 297 (Tex.Ct.App.2001). In that case, the home state of the child was the foreign
country Qatar, which sought by court order to defer jurisdiction to Texas at a time when Arkansas
had become the home state of the child. Explaining its decision that the Texas court had no
jurisdiction, the Court of Appeals of Texas held:
Texas simply no longer had superior jurisdiction to Arkansas at the time
Michael filed his suit in Texas. If Michael had filed suit in Texas while Qatar still
maintained its status as “home state,” Qatar’s deferral to the Texas court would have
made Texas the state with a superior right to jurisdiction. At that time, Arkansas had
not become the home state, and Qatar was clearly the home state. However, because
Michael waited to file suit in Texas until the children had lived in Arkansas for well
over six months, Arkansas achieved “home state” status during his delay.
In re McCoy, 52 S.W.3d at 306.
With this insight into persuasive authority from sister jurisdictions, we turn to the case at bar.
While Tennessee might claim “home state” status, under the facts of this case, it has not done
so. The only basis on which Tennessee has actually taken jurisdiction is as a result of the DCS
petition charging that B.N.W. was a dependent and neglected child. Indeed, Juvenile Referee Alan
Calhoun made it clear in his August 17, 2004, order that “This court is exercising temporary
emergency jurisdiction of this matter pursuant to section 36-6-219 of Tennessee Code Annotated;
however, the extent of its jurisdiction remains disputed.”
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The only relevant pleadings before the Court are (1) the petition by Debra Whitehead to
domesticate the judgment of the Alabama Juvenile Court of February 23, 2004, which petition has
never been adjudicated and the order never domesticated; (2) the answer of Robbie Whitehead
challenging the jurisdiction of the Juvenile Court of Davidson County, Tennessee, to either
domesticate the Alabama order or take any other action in this case; (3) the petition of DCS for
emergency consideration of the dependent and neglected child allegations as to B.N.W.; and (4) the
oral petition of William Spann recognized in the temporary custody order whereby he sought such
custody under the DCS petition.
Because the record discloses that proceedings as to custody of B.N.W. had long been ongoing
before the Juvenile Court of Lauderdale County, Alabama, consideration has to be first given to
Tennessee Code Annotated § 36-6-221. This statute provides:
36-6-221. Proceedings already commenced in another state. — (a) Except as
otherwise provided in § 36-6-219 [temporary emergency jurisdiction], a court of this
state may not exercise its jurisdiction under this part if, at the time of the
commencement of the proceeding, a proceeding concerning the custody of the child
has been commenced in a court of another state having jurisdiction substantially in
conformity with this part, unless the proceeding has been terminated or is stayed by
the court of the other state because a court of this state is a more convenient forum
under § 36-6-222.
(b) Except as otherwise provided in § 36-6-219, a court of this state, before
hearing a child custody proceeding, shall examine the court documents and other
information supplied by the parties pursuant to § 36-6-224. If the court determines
that a child custody proceeding has been commenced in a court in another state
having jurisdiction substantially in accordance with this part, the court of this state
shall stay its proceeding and communicate with the court of the other state. If the
court of the state having jurisdiction substantially in accordance with this part does
not determine that the court of this state is a more appropriate forum, the court of this
state shall dismiss the proceeding.
(c) In a proceeding to modify a child custody determination, a court of this
state shall determine whether a proceeding to enforce the determination has been
commenced in another state. If a proceeding to enforce a child custody determination
has been commenced in another state, the court may:
(1) Stay the proceeding for modification pending the entry of an order of a
court of the other state enforcing, staying, denying, or dismissing the proceeding for
enforcement;
(2) Enjoin the parties from continuing with the proceeding for enforcement;
or
(3) Proceed with the modification under conditions it considers appropriate.
Tenn. Code Ann. § 36-6-221.
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At least at the theoretical level, the UCCJEA was intended to resolve problems existing under
the UCCJA concerning simultaneous proceedings. As explained in the comments to the official text
under Tennessee Code Annotated section 36-6-221:6
This section represents the remnants of the simultaneous proceedings
provisions of the UCCJA § 6. The problem of simultaneous proceedings is no longer
a significant issue. Most of the problems have been resolved by the prioritization of
home state jurisdiction under section 17 [§ 36-6-216]; the exclusive, continuing
jurisdiction provisions of section 18 [§ 36-6-217]; and the prohibitions on
modification of section 19 [§ 36-6-218]. If there is a home state, there can be no
exercise of significant connection jurisdiction in an initial child custody
determination and, therefore, no simultaneous proceedings. If there is a state of
exclusive, continuing jurisdiction, there cannot be another state with concurrent
jurisdiction and, therefore, no simultaneous proceedings. Of course, the home state,
as well as the state with exclusive, continuing jurisdiction, could defer to another
state under section 23 [§ 36-6-222]. However, that decision is left entirely to the
home state or the state with exclusive, continuing jurisdiction.
Tenn. Code Ann. § 36-6-221 (official cmts).
So it appears that at the time of the final hearing before the Davidson County Juvenile Court
concerning jurisdiction it was apparent that:
1. If the court found, regardless of home state status, that Alabama had continuous and
exclusive jurisdiction of the custody issues, then Tennessee must defer to the
Alabama court under Tennessee Code Annotated section 36-6-221.
2. If the Davidson County court was an inconvenient forum under the circumstances
and the court of Alabama was a more appropriate forum, then regardless of the type
of jurisdiction that the Tennessee court was or could be exercising, the Tennessee
court in its discretion could decline to exercise jurisdiction and defer to the Alabama
courts under the provisions of Tennessee Code Annotated section 36-6-222.
At the time of the final hearing of August 10, 2004, which resulted in the final judgment of
the Juvenile Court of Davidson County on October 18, 2004, the following is undisputed in the
record:
1. Ongoing custody proceedings as to B.N.W. had existed in Alabama for three (3)
years prior to the April 14, 2004, petition being filed in Davidson County.
2. The child, B.N.W., was in Alabama and in the custody of Robbie Whitehead under
the July 19, 2004, order of the Alabama court.
6
These comments to the official text are not part of the legislative Act, but are evidence of legislative intent.
See Tenn. Code Ann. § 36-6-203.
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3. The mother, Debra Whitehead, was physically located in Alabama in a drug rehab
center.
4. Maternal grandfather, William Spann, had never been a party to the Alabama
proceedings, and his only claim to custody of B.N.W. was based upon the order of
the Tennessee court following the DCS petition when that court was exercising
temporary emergency jurisdiction pursuant to Tennessee Code Annotated section 36-
6-219.
5. The Alabama court had not determined that it no longer had continuing exclusive
jurisdiction under Tennessee Code Annotated section 36-6-218(1).
6. Neither a court of Tennessee nor a court of Alabama had determined that the child,
the child’s parents or any person acting as a parent did not presently reside in the
state of Alabama. See Tenn. Code Ann. § 36-6-218(2).
While we are hampered by the fact that the “Order Confirming Referee” entered October 18,
2004, following the hearing of August 10, 2004, does not specifically delineate the basis upon which
Judge Green declined to exercise jurisdiction and deferred to the jurisdiction of the Juvenile Court
of Lauderdale County, Alabama, the findings made by the Davidson County Juvenile Court leave
no doubt that Alabama has continuing exclusive jurisdiction and is the more convenient and
appropriate forum to hear the custody issues in this case. The Order provides:
2. The Honorable Betty Adams Green, Judge of the Juvenile Court for
Davidson County, Tennessee, has spoken by telephone with the Honorable Larry
Mack Smith, Judge of the Juvenile Court for Lauderdale County, Alabama, pursuant
to the provisions of Uniform Child Custody Jurisdiction and Enforcement Act. The
judges agreed that the order of the Alabama court entered February 24, 2004,
provided that all previous orders of that court remained in full force and effect,
including the provisions of the Alabama court’s order entered August 19, 2003,
which stated, “The Court reserves jurisdiction to continue monitoring progress in this
cause of action.” The aforementioned Alabama order also stated, “This Court shall
retain jurisdiction over this matter and shall have review hearing on the 17th day of
February, 2004, at 11:30 a.m. before the undersigned.” Judge Smith stated that he
reserved jurisdiction over this matter in his Court due to his concern that the mother
of the minor child, Debra Whitehead (hereinafter “mother”) would relapse into drug
abuse, which was what led to the removal of her child by the Alabama court as early
as 2001. The judges of both courts agreed that the child has extensive ties to the
State of Alabama inasmuch as she resided from her birth to 2003 at the residence of
her paternal grandmother, Robbie Whitehead (hereinafter “grandmother”), in
Alabama and continued to visit her grandmother in Alabama on alternating weekends
after the mother moved with the child to Tennessee in 2003. The mother and the
child are represented in the Alabama by counsel and a guardian ad litem,
respectively, and the mother is currently in treatment for her drug abuse in Alabama
according to her Tennessee counsel.
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3. This court declines to exercise jurisdiction over any custody
determination in this matter and hereby defers such issues to the Juvenile Court for
Lauderdale County, Alabama; however, the Tennessee Department of Children’s
Services (hereinafter “Department”) may proceed on its petition alleging that the
mother has caused the minor child to be a dependent and neglected child within the
definition set forth at section 37-1-102(b)(12) of the Tennessee Code Annotated.
This Court shall transfer any further proceedings involving the custody determination
regarding this child to the Juvenile Court for Lauderdale County, Alabama.
From our review of the record, it is clear that Alabama has continuing exclusive jurisdiction
and is the most convenient and adequate forum to determine these issues concerning the custody of
B.N.W. The Juvenile Court of Davidson did not abuse its discretion in declining to exercise
jurisdiction and in deferring to the jurisdiction of the Juvenile Court of Lauderdale County, Alabama.
The decision of the trial court to decline to exercise jurisdiction and to defer to Alabama is
mandated by Tennessee Code Annotated section 36-6-221 because Alabama has exclusive
continuing jurisdiction under Tennessee Code Annotated section 36-6-217. The record before this
Court clearly establishes that Alabama has such exclusive continuing jurisdiction.
Appellants assert that Robbie Whitehead is not a “person acting as a parent” within the
meaning of the UCCJEA. Tennessee Code Annotated section 36-6-205(13) provides:
‘Person acting as a parent’ means a person other than a parent who:
(A) Has physical custody of the child or has had physical
custody for a period of six (6) consecutive months, including any
temporary absence, within one (1) year immediately before the
commencement of a child custody proceeding; and
(B) Has been awarded legal custody by a court or claims a
right to legal custody under the law of this state;
Tenn. Code Ann. § 36-6-205(13).
In order for appellants to prevail it would be necessary to construe “commencement of a child
custody proceeding” to mean the proceeding instituted by Debbie Whitehead in Davidson County
on April 14, 2004. Tennessee Code Annotated section 36-6-205(4) provides, “‘Child custody
proceeding’ means a proceeding in which legal custody, physical custody, or visitation with respect
to a child is an issue.”
That same statute provides, “‘Child custody determination’ means a judgment, decree, or
other order of a court providing for the legal custody, physical custody, or visitation with respect to
a child.” Tenn. Code Ann. § 36-6-205(4).
Nothing in the UCCJEA compels the conclusion that “commencement of a child custody
proceeding” means the commencement of the Tennessee proceeding in this case. This is particularly
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true since Alabama clearly has continuing jurisdiction under Tennessee Code Annotated section 36-
6-217 following the “commencement of a child custody proceeding” in the state of Alabama. The
statutory construction sought by the appellants would mean that the court with exclusive continuing
jurisdiction, which had specifically reserved such continuing jurisdiction, had in the same order in
which such jurisdiction had been reserved, sewn the seed for the destruction of its own jurisdiction
by the mere lapse of time. Such a construction would frustrate the purposes of UCCJEA. Tennessee
Code Annotated section 36-6-202 provides:
Construction and purpose. This part shall be liberally
construed and applied to promote its underlying purposes and
policies. This part should be construed according to its purposes,
which are to:
(1) Avoid jurisdictional competition and conflict with courts
of other states in matters of child custody which have in the past
resulted in the shifting of children from state to state with harmful
effects on their well-being;
(2) Promote cooperation with the courts of other states to the
end that a custody decree is rendered in that state which can best
decide the case in the interest of the child;
(3) Discourage the use of the interstate system for continuing
controversies over child custody;
(4) Deter abductions of children;
(5) Avoid relitigation of custody decisions of other states in
this state; and
(6) Facilitate the enforcement of custody decrees of other
states.
Tenn. Code Ann. § 36-6-202.
In cases involving exclusive continuing jurisdiction under Tennessee Code Annotated section
36-6-217, it is apparent that the “person acting as a parent” means a person acting as a parent at the
time the original action in the continuing jurisdiction state was filed. The official comments to
Tennessee Code Annotated section 36-6-217 provide:
The continuing jurisdiction of the original decree state is exclusive.
It continues until one (1) of two (2) events occurs:
1. If a parent or a person acting as a parent remains in the
original decree state, continuing jurisdiction is lost when neither the
child, the child and a parent, nor the child and a person acting as a
parent continue to have a significant connection with the original
decree state and there is no longer substantial evidence concerning the
child’s care, protection, training and personal relations in that state.
In other words, even if the child has acquired a new home
state, the original decree state retains exclusive, continuing
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jurisdiction, so long as the general requisites of the substantial
connection jurisdiction provisions are met. If the relationship
between the child and the person remaining in the state with
exclusive, continuing jurisdiction becomes so attenuated that the
court could no longer find significant connections and substantial
evidence, jurisdiction would no longer exist. The use of the phrase
“a court of this state” under subsection (a)(1) makes it clear that the
original decree state is the sole determinant of whether jurisdiction
continues. A party seeking to modify a custody determination must
obtain an order from the original decree state stating that it no longer
has jurisdiction.
2. Continuing jurisdiction is lost when the child, the child’s
parents, and any person acting as a parent no longer reside in the
original decree state.
Tenn. Code Ann. § 36-6-217 (official cmts).
At the time of the commencement of the child custody proceeding in Alabama, Robbie
Whitehead was a “person acting as a parent” with the father of B.N.W. being incarcerated and her
mother being addicted to cocaine.
It is well to observe that Juvenile Referee Alan Calhoun in his August 30, 2004 order
specifically found that Robbie Whitehead was a “person acting as a parent” under the UCCJEA.
This finding was approved and incorporated into the final order of Juvenile Judge Green entered
October 18, 2004. Having no transcript or statement of the evidence for review we have no means
of reviewing the factual basis on which this determination was made and must conclusively presume
that the testimonial record would support the action of the trial judge. See Sherrod, 849 S.W.2d at
783.
Appellants further complain that the trial court erred in not making an appropriate record of
its communications with the juvenile court of Lauderdale County, Alabama as required by Tennessee
Code Annotated section 36-6-213(d) and (e). This issue is raised for the first time on appeal as the
record before the Court does not disclose that appellants objected to such matters in the trial court
or otherwise brought to the attention of the trial judge the inadequacy of the record relative to the
communication between judges. They may not be heard now to complain. Pearman v. Pearman,
781 S.W.2d 585, 587-88 (Tenn. Ct. App. 1989); Barnhill v. Barnhill, 826 S.W.2d 443, 458 (Tenn.
Ct. App. 1991).
Even if deferring to Alabama were not mandated under Tennessee Code Annotated section
36-6-221 the trial court cannot be held to have abused its discretion under Tennessee Code
Annotated section 36-6-222 in finding that Alabama was the most convenient and adequate forum
for determination of these custody issues.
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The disposition made of this case makes it unnecessary to discuss whether or not Debra
Whitehead is judicially estopped to attack the continuing jurisdiction of the Alabama court when her
initial and only relevant pleading in the case seeks to domesticate and enforce the judgment of the
Alabama court. See Marcus v. Marcus, 993 S.W.2d 596, 601-03 (Tenn. 1999).
The judgment of the trial court is in all respects affirmed, and the costs are assessed to the
appellants. The case is remanded for such further proceedings as may be necessary.
___________________________________
WILLIAM B. CAIN, JUDGE
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