IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
BARRI JO (GEORGE) GREEN, )
)
FILED
Plaintiff/Appellant, ) Gibson Chancery No. 8852
) April 28, 1999
VS. ) Appeal No. 02A01-9711-CH-00279
) Cecil Crowson, Jr.
LANNY DEAN GEORGE, ) Appellate Court Clerk
)
Defendant/Appellee. )
APPEAL FROM THE CHANCERY COURT OF GIBSON COUNTY
AT TRENTON, TENNESSEE
THE HONORABLE GEORGE R. ELLIS, CHANCELLOR
BOBBY A. McGEE
Linden, Tennessee
Attorney for Appellant
J. MARK JOHNSON
Trenton, Tennessee
Attorney for Appellee
REVERSED, VACATED, AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
Barri Jo Green (“Barri”) appeals from the Gibson County Chancery Court’s denial
of her motion to dismiss custody proceedings that were brought in the chancery court after
dependent and neglect proceedings were commenced in the Gibson County Juvenile
Court. Based upon the following, we reverse.
Facts and Procedural History
On August 3, 1990, Barri filed a Complaint for Absolute Divorce against Lanny Dean
George (“Lanny”) in the Gibson County Chancery Court, after having been married to
Lanny since August 1986. In Barri’s complaint, she sought custody of and child support
for the parties’ one minor child, Samantha, who was then an infant. On August 16, 1990,
the chancery court entered an Agreed Order for Temporary Custody and Child Support,
which awarded Barri “temporary custody and temporary child support pending a full hearing
of this cause.” Thereafter, on March 4, 1991, Barri’s action for divorce was heard by the
chancery court. The chancery court entered a judgment awarding Barri an absolute
divorce on May 7, 1991. By agreement of the parties, the court’s order further awarded
custody of and child support for Samantha to Barri.
On April 19, 1993, Lanny petitioned the chancery court to modify Samantha’s
custody so as to award Lanny custody. He also separately filed a motion for “temporary
custody” of Samantha. He based his petition upon the assertion that Samantha had been
“severely whipped and/or beaten” when Lanny last obtained the child for visitation, and that
Samantha had also been beaten on previous occasions. This, he asserted, constituted a
sufficient change of circumstances to warrant a change of custody from Barri to Lanny.
On the same date, April 19, 1993, the chancery court entered a temporary restraining order
that awarded temporary custody to Lanny and prohibited Barri from attempting to obtain
possession of Samantha pending a final hearing on Lanny’s petition to change custody.
Concurrent with the filing of Lanny’s petition and motion in the Gibson County
Chancery Court, however, the State of Tennessee Department of Human Services (“the
State”) commenced dependent and neglect proceedings in the Gibson County Juvenile
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Court by filing a petition for temporary custody. The State’s petition alleged that Samantha
was dependent and neglected and sought “an immediate protective custody order placing
the temporary care, custody, and control” of Samantha with either the State or with Lanny.
Accordingly, the juvenile court judge signed a protective custody order on April 19, 1993,
that awarded temporary care and custody to the State for foster care with Lanny.
Moreover, the juvenile court appointed a guardian ad litem for Samantha. The petition and
protective custody order were both filed with the juvenile court clerk on April 20, 1993. On
April 21, 1993, the juvenile court held a preliminary hearing on the State’s petition,
whereafter, by order entered May 10, 1993, it awarded temporary custody of Samantha to
the State, though Samantha’s actual physical custody was to remain with Lanny.
On March 15, 1994, the juvenile court entered a consent order, which stated the
following:
The State . . . consents to both temporary legal and physical custody
of . . . Samantha . . . being awarded to the father, Lanny George.
It is therefore ORDERED that temporary legal custody of . . .
Samantha . . . shall be divested out of the State . . . and that both the
temporary legal and physical custody of said child shall be awarded to and
vested in the child’s natural father, Lanny George.
Thereafter, the order set forth an arrangement for supervised visitation by Barri, and
provided that “the Court shall review this matter on . . . August 5, 1994 . . . .” Lastly, the
order expressly established that any final adjudicatory decision of whether Samantha is
dependent and neglected shall be reserved. The matter was thereafter reviewed by the
juvenile court on August 5, 1994, at which time the court entered another interlocutory
order and continued the matter further. The matter was again brought before the juvenile
court on September 11, 1995, after which the juvenile court entered an order, on January
17, 1996, that stated,
[T]he Court finds that while this is taken as disposition on a finding of
dependent and neglected, the attenuated process of these hearings must be
considered. In weighing hours of testimony given the Court finds that it is in
the best interest of the minor child that custody be returned to the mother
and all incidents relating to visitation, etc. in effect by the Chancery Court are
to be followed.
It is relevant to note, however, that the matter before this Court does not involve any
appeal from the juvenile court’s January 17, 1996 award of custody to Barri.
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On September 15, 1995 (after the September 11 juvenile court hearing, but before
the entry of the juvenile court’s January 17 order), Lanny filed a petition for change of
custody in the chancery court, wherein he sought permanent custody of Samantha. This
petition further sought a restraining order to prevent Barri from interfering with Lanny’s
custody. On the same date, September 15, 1995, the chancery court entered such a
restraining order. Shortly thereafter, on September 19, 1995, Barri filed a motion to
dismiss with the chancery court, asserting, “That the provisions of T.C.A. 37-1-103, clearly
show that the exclusive original jurisdiction over . . . Samantha . . . shall remain with the
Juvenile Court until the child reaches the age of nineteen (19) years.”
On March 14, 1997, the chancery court entered an interlocutory order that awarded
temporary custody of Samantha to Lanny. On April 14, 1997, Barri moved for a Rule 9
interlocutory appeal by permission from the trial court, seeking to appeal from the March
14, 1997 interlocutory order. See Tenn. R. App. P. 9. On September 9, 1997, at the
direction of the chancellor, Barri filed a “renewed” motion to dismiss, though no written
order had yet been entered disposing of her prior motion to dismiss. This motion to dismiss
again sought dismissal of Lanny’s petition for change of custody, wherein he sought
permanent custody of Samantha, based upon the assertion that the chancery court lacked
jurisdiction to adjudicate Samantha’s custody. On October 7, 1997, the chancery court
denied Barri’s motion to allow a Rule 9 interlocutory appeal from the March 14, 1997 award
of temporary custody to Lanny. It reserved ruling on all other pending matters, including
Barri’s motion to dismiss, at that time.
On November 7, 1997, Barri sought a Rule 10 extraordinary appeal by permission
from this Court. On December 8, 1997, this Court ordered that proceedings in this Court
be held in abeyance pending the chancery court’s disposition of the motion to dismiss.
Thereafter, on December 12, 1997, Barri again filed a “renewed” motion to dismiss in the
chancery court. On April 9, 1998, after Barri’s motion to dismiss was again brought before
the chancery court, the chancery court denied Barri’s motion to dismiss. Thereafter, on
May 4, 1998, Barri filed a revised Rule 10 application for extraordinary appeal by
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permission from this Court, which we granted by order dated May 21, 1998.
As such, the issue before this Court is whether the Gibson County Chancery Court
continues to have subject matter jurisdiction as to Samantha’s custody, even after the
commencement of juvenile court proceedings wherein Samantha has been alleged to be
dependent and neglected.
Analysis
There exists no dispute that, after the chancery court’s divorce decree as to Lanny
and Barri, and before the commencement of dependent and neglect proceedings in the
juvenile court, the chancery court possessed subject matter jurisdiction to hear and rule
upon disputes relating to Samantha’s custody. Such jurisdiction is established by
Tennessee Code Annotated section 36-6-101(a)(1), which provides the following:
In a suit for . . . divorce . . . , where the custody of a minor child . . . is a
question, the court may . . . award the care, custody and control of such child
. . . to either of the parties to the suit . . . as the welfare and interest of the
child . . . may demand, and the court may decree that suitable support be
made . . . . 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 (Supp. 1998) (emphasis added). Section 36-6-101, however,
further states, “Nothing in this chapter shall be construed to alter, modify or restrict the
exclusive jurisdiction of the juvenile court pursuant to § 37-1-103.” Id. § 36-6-101(c).
As contended by Barri, we find that the issue before this Court is controlled by the
plain and unambiguous language of section 37-1-103, which provides the following:
(a) The juvenile court has exclusive original jurisdiction of the following
proceedings, which are governed by this part:
(1) Proceedings in which a child is alleged to be delinquent, unruly or
dependent and neglected, or to have committed a juvenile traffic offense as
defined in § 37-1-146;
....
(c) When jurisdiction has been acquired under the provisions of this part,
such jurisdiction shall continue until a person reaches the age of eighteen
(18), except that the court may extend jurisdiction for the limited purposes set
out in § 37-1-102(b)(4)(B) until the person reaches the age of nineteen (19).
Tenn. Code Ann. § 37-1-103 (Supp. 1998) (emphasis added). Based upon this statute,
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once a petition is filed in juvenile court to declare a child dependent and neglected, the
juvenile court has exclusive jurisdiction regarding custody of the child, and any subsequent
order concerning custody entered by the chancery court, which in this case is the court
having jurisdiction over the original divorce proceeding, is void. State v. Gouvitsa, 735
S.W.2d 452, 457 (Tenn. App. 1987). See also Arnold v. Gouvista, 735 S.W.2d 458 (Tenn.
App. 1987); Kidd v. State ex rel. Moore, 207 Tenn. 244, 338 S.W.2d 621 (1960); Marmino
v. Marmino, 34 Tenn. App. 352, 238 S.W .2d 105 (1950).
That this jurisdiction was intended to be exclusive is reinforced by the
omission of dependency and neglect proceedings from T.C.A. § 37-1-104,
which lists the various proceedings in which the juvenile court shares
concurrent jurisdiction with other courts.
Gouvitsa, 735 S.W.2d at 455. Therefore, the Gibson County Chancery Court had no
jurisdiction over Samantha’s custody after the State commenced dependent and neglect
proceedings in juvenile court. See Gouvitsa, 735 S.W.2d at 457.
The jurisdiction of the court entertaining delinquency or dependency
proceedings is continuing, to the exclusion of any other court of concurrent
jurisdiction, and except as jurisdiction may be relinquished in accordance
with statute, once a juvenile court has entertained jurisdiction over a child
that court must take affirmative action to dispose of the case in one of the
ways provided by statute before jurisdiction can terminate. Ordinarily, the
jurisdiction of the court continues until the child reaches majority, or the age
specified by statute....
Gouvitsa, 735 S.W.2d at 455-56 (quoting 43 C.J.S. Infants § 53 (1978)). Section 37-1-103
sets forth only one manner by which the juvenile court’s exclusive jurisdiction may be
relinquished, that being the child’s attainment of the age of majority. See Tenn. Code Ann.
§ 37-1-103(c). Accordingly, the chancery court’s denial of Barri’s motion to dismiss must
be reversed as to any claims regarding Samantha’s custody.
Moreover, we further note that, while Lanny did not submit a brief to this Court, any
argument that he might have raised as to whether the juvenile court conferred or
transferred its jurisdiction to the chancery court would be unsuccessful. 1 This Court has
twice previously recognized, in two unreported opinions, that a juvenile court exercising
exclusive jurisdiction over custody matters cannot confer its jurisdiction on another court.
1. The record on appeal in this case suggests that the juvenile court deemed its role in Samantha’s custody
to be concluded upon the entry of its January 17, 1996 order, and that it deemed any further proceedings
concerning Samantha’s custody to be matters for the chancery court to resolve.
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Simpkins v. Greer, No. 01-A-01-9202-CH00060, 1993 WL 18311 at *3 (Tenn. App. Jan.
29, 1993); Hicks v. Hicks, No. 01A01-9309-CH-00417, 1994 WL 108896 at *2 (Tenn. App.
March 30, 1994). In Simpkins v. Greer, this Court stated,
It is clear that the parties cannot confer subject matter jurisdiction on
the court by consent. See Curtis v. Garrison, 211 Tenn. 339, 346, 364
S.W.2d 933, 936 (1963); James v. Kennedy, 174 Tenn. 591, 595, 129
S.W.2d 215, 216 (1939). We think it is equally clear that a court cannot
confer subject matter jurisdiction on another court. Tenn. Const. art. 6, § 1
grants the legislature the power to determine how many and what kinds of
courts are required for the administration of justice and the power to fix the
limits of each court's jurisdiction. See State ex rel. Ward v. Murrell, 169
Tenn. 688, 692, 90 S.W.2d 945, 946 (1936). Courts possess "only such
jurisdictional powers as are directly, or indirectly, expressly or by implication,
conferred upon [them] by the constitution or legislation of the soverignty on
behalf of which [they] function." 20 Am. Jur. 2d Courts § 91 (2d ed. 1965);
see also Coonradt v. Sailors, 186 Tenn. 294, 305, 209 S.W.2d 859, 863
(1948); McHenry's Lessee v. Wallen, 10 Tenn. 441, 444 (1830).
Simpkins, 1993 WL 18311 at *3.
It must be noted, however, that the chancery court proceedings in this case also
involve such issues as child support, as to which this Court has stated the following:
the juvenile court will not adjust parental disputes concerning the care and
education of a minor, such matters being for a court of equity where the
parents are actual parties.
Gouvitsa, 735 S.W.2d at 455 (quoting 43 C.J.S. Infants § 53 (1978)). Accordingly, while
we have found it necessary to reverse the trial court’s denial of Barri’s motion to dismiss
as to any claims regarding Samantha’s custody, we further find it appropriate to remand
this case for any further proceedings as may be appropriate in light of this opinion.
Conclusion
Based upon the foregoing, the chancery court’s denial of Barri’s motion to dismiss
as to any claims regarding Samantha’s custody is hereby reversed, and any award of
temporary custody entered by the chancery court after the commencement of the
dependent and neglect proceedings in the juvenile court is void and hereby vacated. All
issues concerning Samantha’s custody remain in the Gibson County Juvenile Court. This
case is hereby remanded to the Gibson County Chancery Court for further proceedings as
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hereinabove set forth. Costs of this appeal are taxed to Lanny, for which execution may
issue if necessary.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.
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