In Re Easton W.

07/01/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 15, 2020

IN RE EASTON W.1

Appeal from the Juvenile Court for Hamilton County
No. 278707 Robert D. Philyaw, Judge

No. E2018-01883-COA-R3-JV2

This consolidated appeal concerns a father’s action, filed pro se, to be granted custody of
his child, or, in the alternative, reasonable visitation without the requirement of paying
child support. Following a series of hearings in juvenile court, the father was named the
primary residential parent, a permanent parenting plan was adopted, and the child support
proceedings were assigned a separate docket number to be handled by Maximus/Child
Support Services. Because the action was originally yet mistakenly filed as a dependency
and neglect action by the father, the mother appealed the juvenile court’s decision to circuit
court. On the father’s motion to alter or amend, the juvenile court struck the dependency
and neglect language from its order, and the circuit court then dismissed the action for lack
of subject matter jurisdiction. We affirm the juvenile court’s decision in decreeing this
matter a paternity and visitation action, and we find that the circuit court correctly held that
it lacked subject matter jurisdiction over the appeal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S. and W. NEAL MCBRAYER, J., joined.

Robert N. Meeks, Chattanooga, Tennessee, for the appellant, Brittany Nicole W.

Philip M. Jacobs, Cleveland, Tennessee, for the appellee, Joshua Nathan M.

1
This court has a policy of protecting the identity of children in child custody cases by initializing the last
name of the child.
2
On June 25, 2019, the appellate court clerk consolidated the appeal of the circuit court case (E2018-02302-
COA-R3-CV/No. 18D1263) into the appeal of the juvenile case.
 OPINION

I. BACKGROUND

Easton W. (“the Child”) was born to Brittany Nicole W. (“Mother”) in April 2015
while she was married to Christopher W. In the divorce proceedings associated with the
marriage, it was determined that the Child’s biological father was not Christopher W.
Joshua Nathan M. (“Father”) eventually learned that he was the biological father of the
Child. He immediately moved from his home in Arkansas and took the closest job he could
find with the postal service to be near the Child. Father first moved in with Mother for six
months to parent the Child alongside her. Following the disintegration of the parties’
relationship, Father moved to Scottsboro, Alabama, to live with his mother and continued
to visit the Child as he was able.

After Mother and Father separated, Mother did not want Father to have continued
contact with the Child. Father responded by filing a pro se petition in juvenile court on
August 9, 2017, seeking to be granted custody or, in the alternative, reasonable visitation
without the requirement to pay child support. However, the form used to file this pro se
action presented the action as one of dependency and neglect of a child. In her pro se
answer to the petition for custody, Mother asserted that there was no reason to change
custody of the Child.

Following a hearing before a magistrate on October 17, 2017, the parties were
ordered to enter mediation and encouraged to agree upon a parenting schedule. After the
parties’ attempts at mediation were unsuccessful, the magistrate sustained Father’s petition
for visitation rights in a hearing on December 21, 2017, and ordered a parenting schedule
granting Father parenting time in periods of days that were to be agreed upon by the parties.

On January 12, 2018, Father requested a de novo review of all issues heard on
December 21, 2017, or, in the alternative, an appeal of the juvenile court’s decision. On
February 21, 2018, a de novo hearing was held before the presiding judge of the juvenile
court. The record on appeal contains an order that provides as follows:

Date: February 21, 2018
Judge: Robert D. Philyaw
Petition #278,707

ORDER

This matter came before the Court upon Request for Rehearing
filed by Attorney Phil Jacobs, representing Joshua M[.],
Father, from the Findings and Recommendations of the
Magistrate on December 21, 2017 at which time parenting time
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was set out for Mr. M[.].

The Court heard from Mr. M[.] and the mother, Brittany W[.].

The Court was of the opinion both parents could have made
better decisions in certain situations but it was evident both
parents do love their child. The Court was concerned with the
mother’s demeanor in the Courtroom but gave her the benefit
of the doubt since she received little sleep last night in an effort
to complete school work (for class at Chattanooga State). The
Court was given no explanation for the way she acted,
described by the father and for the most part undisputed, in the
preceding few months.

Father plans to obtain employment and move to Chattanooga
to be closer to his son. The only concern voiced about Mr. M[.]
was allowing the child to ride a battery-operated four wheeler;
there was some speculation the paternal grandmother’s
medication may be within the child’s reach.

Mother, however, felt like she should be the only one in charge
and wanted her (now ex-) husband, Mr. W[.], to be the father,
to the detriment of the child. Father missed a year to a year and
a half of the child’s family but as soon as he found out he was
the father of the child he tried to move closer and become a
part of the child’s life.

There was no evidence this was a typical domestic abuse
situation in that Mother did not call law enforcement, seek
medical attention, or take pictures of any injuries. Mother
acknowledged she had a difficult childhood and she has sought
help from a psychiatrist. Mother stated after the first session,
in which she admitted, to the Court and to the father, to not
being truthful, she fully disclosed her issues.

The Court was concerned about Mother’s statements about
possibly committing suicide, saying she wanted to kill the
father and taking a picture holding a gun to her head.

The Court heard no testimony of problems with exchanges
except from Mother which unfortunately goes to Mother’s
feeling she can make unilateral decisions, to the detriment of
the relationship between the father and the child.
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Mother leaves the child with the grandparents even though the
father wants to spend time parenting the child. Mother
excluded father many times to the point she felt her ex-
husband, Mr. W[.], would be the better father.

The Court relied on the Child Custody Statute (2014 revision)
Tennessee Code Annotated §36-6-106 (a through e) to make
the custody determination.

(1) The strength, nature, and stability of the child’s relationship
with each parent, including whether one (1) parent has
performed the majority of parenting responsibilities relating to
the daily needs of the child;

The father was not given the opportunity in the child’s early
months to have a relationship with the child. There was
undisputed testimony Father took on the majority of the
parenting duties and day to day care for the child. There was
no indication the child was not well taken care of. This factor
weighed in favor of Father.

(2) Each parent’s ability to facilitate and encourage a close and
continuing parent-child relationship between the child and the
other parents...;

The Court heard nothing about the mother nurturing a
relationship between the child and the father but testimony
showed she went as far as to exclude the father from the child’s
early months. Father did nurture the relationship between the
child and Mother, consoling the child when it was time to
return to Mother’s care. This factor weighed in favor of the
father.

(3) Refusal to attend a court ordered parent education seminar
may be considered by the court as a lack of good faith effort in
these proceedings;

The parents were not previously ordered to attend a parenting
seminar but the Court encouraged Mother and Father to attend
the seminar together if possible.

(4) The disposition of each parent to provide the child with
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food, clothing, medical care, education and other necessary
care;

There was no indication the child did not have his basic needs
met by both parents.

(5) The degree to which a parent has been the primary
caregiver, defined as the parent who has taken the greater
responsibility for performing parental responsibilities;

This factor was previously addressed in number one.

(6) The love, affection, and emotional ties existing between
each parent and the child;

Testimony showed both parents love the child and have a
strong bond with him.

(7) The emotional needs and developmental level of the child;

No proof was given showing this factor was pertinent.

(8) The moral, physical, mental and emotional fitness of each
parent as it relates to their ability to parent the child. The court
may order an examination of a party under Rule 35 of the
Tennessee Rules of Civil Procedure and, if necessary for the
conduct of the proceedings, order the disclosure of confidential
mental health information of a party under 33-3-105(3). The
court order required by § 33-3-105(3) must contain a qualified
protective order that limits the dissemination of confidential
protected mental health information to the purpose of the
litigation pending before the court and provides for the return
or destruction of the confidential protected mental health
information at the conclusion of the proceedings;

The Court heard unflattering testimony about both parents.
There were some especially concerning issues for which the
Court has been told Mother sought professional therapeutic
help. The Court encouraged Mother to continue that
therapeutic relationship if she feels the need to do so.

(9) The child’s interaction and interrelationships with siblings,
other relatives and step-relatives, and mentors, as well as the
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child’s involvement with the child’s physical surroundings,
school, or other significant activities;

The proof showed Mother met a man online and six (6) weeks
later she and her children were living with the man and his
three (3) children. This raised concerns for the Court about
Mother’s judgement.

(10) The importance of continuity in the child’s life and the
length of time the child has lived in a stable, satisfactory
environment;

(11) Evidence of physical or emotional abuse to the child, to
the other parent or to any other person. The court shall, where
appropriate, refer any issues of abuse to juvenile court for
further proceedings;

Factors ten and eleven were not addressed.

(12) The character and behavior of any other person who
resides in or frequents the home of a parent and such person’s
interactions with the child;

The Court did not hear much about anyone living with the
mother but, again, the Court found it a drastic move to bring
her children into another home after having only known the
man for such a short period of time.

(13) The reasonable preference of the child if twelve (12) years
of age or older. The court may hear the preference of a younger
child upon request. The preference of older children should
normally be given greater weight than those of younger
children;

Not addressed due to the child’s young age.

(14) Each parent’s employment schedule, and the court may
make accommodations consistent with those schedules;

Both parents work, sometimes more than one job, and Mother
attends school. At this time Father’s schedule is the more
flexible.

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 Since this was before the Court in the posture of a Rehearing,
the Court deemed it as a first custody order in the case rather
than a change in custody. When determining which parent
would be the primary residential parent, from all the proof and
testimony presented, the Court found the father was in the best
position to assume the role of primary residential parent; the
Court intends for both parents to spend as much time as
possible with the child.

Unless or until the parents and their attorneys submit a
permanent parenting plan the Court will issue an interim plan.

The Court directed Mr. Jacobs to draft the order to include an
agreed upon permanent parenting plan or submit the order as
proposed. If Mr. Meeks objects to the order he will have ten
(10) days to submit his proposed order and the Court will make
a determination at that time.

IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED:

1. Petition 278,707 is sustained as to shared parenting.

2. Brittany W[.] and Joshua M[.] will have joint care, custody
and control of Easton W[.] with both given the authority to
consent to any educational, medical, surgical, or hospital
procedures necessary in the best interest of said child. Father
will be the primary residential parent.

3. Pending submission of a parenting plan parents will exercise
a week on, week off schedule. Father’s week will begin Friday,
March 2, 2018 at 6:00 p.m. The parent receiving the child for
the coming week will pick the child up at the home of the other
parent.

4. ATTORNEY PHIL JACOBS WILL DRAW, CIRCULATE,
AND SUBMIT THE ORDER FOR APPROVAL AND
ENTRY WITHIN TEN (10) DAYS.3
3
At the conclusion of the hearing, the court stated: “Mr. Jacobs, I’m going to ask you to actually draft what
is hopefully an agreed order, circulate it and then if the agreements – if there’[re] things that can’t be agreed
to, but that either of you want changed from today’s order regarding parenting time, you know, the 50/50,
I made that decision even though reluctantly because I know with school-age children that’s very hard. But
if you have to, file it as proposed and then you file your objections to it and I’ll make the decision.”
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 5. The parties are advised that they have thirty (30) days
from the entry of this Order to request an appeal to the
Court of Appeals in Knoxville, Tennessee.

(Emphasis added.). This order was signed by the juvenile court judge on March 10, 2018,
and stamped entered on March 12, 2018. Notably, the order made no mention of
dependency and neglect.

On March 16, 2018, Mother filed a proposed order with the juvenile court to
memorialize the court’s findings from the February 21, 2018, hearing. It provided as
follows:

This matter came to be heard on the 21st day of February, 2018,
before the Honorable Robert Philyaw, presiding over the
Juvenile Court of Hamilton County, Tennessee, upon a
dependency and neglect Petition filed by the Father. Wherein,
Father asked to be granted “custody, or in the alternative,
reasonable visitation and not having to pay child support”.
Based upon the testimony of the parties and the record as a
whole, this Court makes the following Findings of Facts and
Conclusions of Law:

1. Both of the parents are young.

2. Neither parent is perfect, and each could have made better
decisions at different times during their lives.

3. Both parents love the child.

4. The child is doing well and turns 3 on April 30, 2018.

5. The Court is concerned about the Mother, specifically, with
regard to the way she appeared in Court; the Court has given
the Mother the benefit of the doubt with reference to how she
and her counsel explained her demeanor in measuring her
testimony.

6. The explanations given by the Mother of stress and lack of
sleep does not excuse her behavior in the months preceding the
trial.

7. The Father lives in Scottsboro with the Paternal
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Grandmother and is trying to move closer to the Mother.

8. The Father moved from Arkansas and took the closest job
he could find with the postal service, a[s] soon as he found out
that he was the Father of the child.

9. The Father resides with his Mother in Scottsboro and the
Mother provided no proof of any issues with the Paternal
Grandmother’s significant other or half-brother, both of which
reside in the residence.

10. The Mother also presented no real issues with the Paternal
Grandmother, except some speculation about the child’s access
to medication.

11. The Mother’s testimony confirmed that since conception,
she has believed and acted like she should be the parent in
charge of everything.

12. The Mother wanted Mr. W[.] to be the Father; she made
that unilateral decision to the detriment of the Father and the
child.

13. It is tragic that the Father missed the first year and a half of
a relationship.

14. As soon as Father found out he was the biological Father,
he responded appropriately.

15. There has been some evidence of abuse back and forth
between the parties, but no real sign of domestic abuse.

16. The behavior between the parties is not acceptable nor
condoned by the Court; however, the Mother did not produce
any pictures of physical abuse or proof that she contacted the
police. The Court certainly believes that if the issues had arisen
to the level of domestic violence, that the Mother would have
taken those steps.

17. The Mother has had a very difficult childhood, which she
did not initially disclose to her psychiatrist, but she testified
that she rectified that in the following four (4) sessions.

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18. The Mother is not currently seeking treatment, but the
Mother should seek treatment, if she needs the same.

19. The Court is concerned about the Mother’s suicidal threats
and the Mother’s threats to harm Mr. W[.].

20. Allegations of taking pictures of a gun pointed at your head
and the Mother’s behavior displayed on the recording, give the
Court great concern.

21. It is unfortunate that the Mother displays that she believes
she should be making unilateral decisions on behalf of the
child, and the Father has to deal with it, even to the detriment
of the child.

22. The fact that the Mother leaves the child with family
members in and of itself is a common decision; however, the
Father is trying to visit, and it appears to the Court that the
Mother made the decision to exclude the Father, and this
combined with the fact that the Father was excluded for the
first 18 months of the child’s life so that she could be with Mr.
W[.], leaves the Court to determine that she is trying to alienate
the Father.

23. This is an initial custody termination and the Court is
required to measure the best interest of the minor child,
pursuant to T.C.A. §36-6-106.

24. The Father did not have an opportunity to parent during the
first eighteen (18) months, but the undisputed testimony is that
the Father performed the majority of parenting for Easton and
Mother’s other child for the six months the parties resided
together, prior to the filing of this action.

25. If the Court had to weigh the factor of the parent who acted
as primary caregiver in favor of one of the parents, the Court
would find that the Father provided more of the care during the
child’s life, when he was aware that he was the Father.

26. How the parents encourage a relationship between one
another is the most important factor, and the Court has already
found that the Mother has failed to encourage a relationship
between the Father and the minor child.
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27. The Father has attempted to encourage a relationship
between the Mother and the minor child, as is evidenced by the
most recent events when he encouraged the child to go with the
Mother.

28. There is no requirement for either parent to attend the
parenting class, but the parties are encouraged to attend the
class and attend the class together.

29. The parties’ ability to provide for the needs of the child is
equal.

30. The parties’ love and affection for the minor child is equal.

31. The child has no special needs.

32. The Court is concerned with the other people in the
Mother’s home.

33. The Mother’s testimony is that six weeks after breaking up
with the Father, she moved a man that she met online into her
residence, and his three young sons visit in the home on a
regular basis.

34. The Mother’s decision to move a gentleman into her home
so quickly after breaking up with the Father, is a drastic
decision by the Mother.

35. The Mother’s decision to move this gentleman into her
home so rapidly is not reasonable and reflects upon her poor
judgment.

36. Both parents work and the Mother goes to school, and at
times the parties have worked two (2) jobs. The Court must
consider the parents’ work schedules, but for now the Court
will adopt a week on/week off schedule unless the parties can
agree to a different schedule.

37. The Father is in the best position to provide for the best
interest of the child and he will be named the Primary
Residential Parent. If the parties cannot agree upon a Parenting
Plan, then the Father shall submit a Parenting Plan, and the
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 Mother will be given an opportunity to object to the plan by
filing her own proposed plan.

38. The parties shall rotate week on/week off co-parenting with
the receiving party providing the transportation. Not going to
the home of the other parent to pick up the child signals that
there is a problem with the other party’s home.

39. The parties need to talk and begin to open up the lines of
communication.

40. The Court sees no reason that the surname of the child
should not be changed, the child should not be named after the
Mother’s ex-husband; however, this decision will be left to the
discretion of the Child Support Magistrate for the time being.

It is therefore ORDERED, ADJUDGED AND DECREED
as follows:

1. The Father is named the Primary Residential Parent.

2. The enclosed Permanent Parenting Plan is incorporated
herein without restating the same verbatim.

3. All matters with reference to child support and the child’s
surname shall be handled by Maximus/Child Support Services
under docket number 54548.

4. Each party will pay their own attorney fees.

5. Any remaining court costs shall be divided equally between
the parties.

(Emphasis added.). In contrast to the juvenile court’s earlier order, the preamble of this
proposed order stated that it arose upon a dependency and neglect petition filed by Father.
Further, the proposed order did not include the instructions to direct an appeal to this court.
The proposed order was signed and entered by the juvenile court along with the proposed
parenting plan on March 29, 2018.

At the same time, Mother also moved for reconsideration of the juvenile court’s
February 21, 2018 ruling. In her motion, Mother expressed concern with some of the
testimony that was allowed during the hearing and related alleged verbal and physical
assault by Father that had occurred since the hearing. Mother also complained about the
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Child’s behavioral and emotional difficulties that had arisen as a result of the weekly
parenting exchanges. Upon a hearing on May 30, 2018, the juvenile court encouraged the
parties to work together to alleviate the Child’s anxiety at exchange time but denied
Mother’s motion to reconsider. The order was signed and entered on June 8, 2018.

On June 6, 2018, two days before the juvenile court entered its order on the motion
to reconsider, Mother filed a notice with the juvenile court of her intention to appeal to the
circuit court. On June 18, 2018, the circuit court set the case for hearing. Father responded
with a motion to dismiss on the grounds that the appeal should have been filed to this court,
as the action in the juvenile court was one of establishing paternity and visitation, not of
dependency and neglect. However, after a hearing on July 16, 2018, the circuit court
denied Father’s motion to dismiss without prejudice on August 23, 2018. Additionally, the
circuit court granted Mother’s motion to join the child support matter pending in juvenile
court to the action to be heard by the circuit court in the interest of judicial economy.

On August 31, 2018, Father moved to alter or amend the juvenile court’s judgment
pursuant to Rule 59 of the Tennessee Rules of Civil Procedure, or, in the alternative, to set
aside the judgment pursuant to Rule 60. Father requested that the juvenile court enter a
new judgment removing the dependency and neglect language from the order entered on
March 29, 2018, given that the action was a paternity and visitation action. In Mother’s
view, the juvenile court’s order removing the dependency and neglect language from the
earlier order was improper because the appeal had already been perfected to the circuit
court.4 She posited that because the circuit court had already docketed her appeal, the
juvenile court was without jurisdiction to amend its order. She asserted that Father had
waived the issue by not raising it at trial and by failing to amend his pleadings to remove
the dependency and neglect language to conform to the proof presented at trial.

On September 12, 2018, the juvenile court heard Father’s motion and struck the
language “upon dependency and neglect” from the order, pursuant to Rule 60. The
judgment entered September 14, 2018 provided as follows:

This matter came to be heard on the 12th day of September,
2018 before the Honorable Robert Philyaw on the Motion to
Alter or Amend Judgment pursuant to Tennessee Rule of Civil
Procedure 59, or in the alternative pursuant to Tennessee Rule
of Civil Procedure 60 to set aside the previous Judgment and
enter a new Judgment. Based on the argument of counsel and
the record as a whole, this Court finds that it was a mistake
for the Court to approve language in an Order prepared by
Counsel for the Mother that said this matter came to be heard
on a dependency and neglect Petition. Pursuant to T.R.C.P.

4
Mother desired “a de novo trial” with the circuit court in contrast to the review available before this court.
- 13 -
 § 60.02 the Court corrects that Order and strikes “upon a
dependency and neglect.” There is no reference to any
dependency and neglect proceeding in the Court’s opinion
from the same hearing and neither party alleged any
dependency and neglect, [in] any pleading, or argument, or
allegation throughout the trial. This was custody proceeding
and because the Circuit Court never had jurisdiction, this
Court retains jurisdiction, especially with Orders that this
Court approved. There are forms that have been used by this
Court that existed prior to this Court being elected and steps
are being taken to remedy issues created by those forms. The
Court’s Order from the Court’s opinion, not the Order prepared
by Counsel for the Mother, directly ordered, “the parties
advised that they have thirty (30) days from entry of this Order
to request an Appeal to the Court of Appeals in Knoxville,
Tennessee.” It is therefore ORDERED, ADJUDGED and
DECREED:

1. That pursuant to Tennessee Rule of Civil Procedure 60, the
previous Judgment is set aside and re-entered with the verbiage
of dependency and neglect being stricken and the record
reflecting that this matter is not a dependency and neglect
matter.

2. The Judgment should reflect that this matter came to be
heard on a Petition to Establish Paternity and Custody, and
for the Court to adopt a Parenting Plan.

3. The appeal from the Court’s Final Judgment remains to
the Court of Appeals and not the Circuit court.

4. Time for filing an appeal to Eastern Division of the Court of
Appeals is pursuant to Tennessee Rules of Appellant
Procedure.

(Emphasis added.).

A hearing was held in the circuit court on September 24, 2018, to consider Father’s
renewed motion to dismiss. The circuit court observed: “[M]y feeling is that, Judge
Philyaw can take care of Judge Philyaw’s orders and he ought to be able to amend that
order . . . [u]nless, of course, there’s case law that says it’s divested and he can’t do it
period. That’s what I’m interested to know because if there’s nothing clear, I’m sending it
back to them.” Subsequently, on November 6, 2018, the circuit court ruled as follows:
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THIS MATTER was before the Court on Petitioner Joshua
Nathan M[.]’s renewed Motion to Dismiss. The Court having
reviewed the file proceeded to make inquiry of counsel for the
respective parties. Thereupon, the Court heard the argument of
counsel for the respective parties, gave due consideration to the
Record, and the position of the respective parties and
announced its opinion. The Record reflects that Joshua Nathan
M[.] filed a pro se Petition on August 9, 2017 asserting that he
was the putative father of the minor child Easton [] W[.]. He
asserted that he would like to be granted custody of his child
or, in the alternative, reasonable visitation with what had been
determined to be his minor child. The Mother was married
while she was pregnant with the child who is the subject of the
underlying action. She and her husband were then divorced and
the husband was excluded as the father. The Mother filed a pro
se Answer to the Father’s Petition on September 7, 2017
asserting that she was answering the Petition for custody. The
Mother asserted that there was no reason to change the custody.

Thereafter, there was a Petition to Establish Paternity filed in
the Juvenile Court . . . . After the parties retained counsel, there
was an unsuccessful mediation and a trial on the merits before
Judge Robert D. Philyaw, Judge of the Juvenile Court of
Hamilton County. After the Final Order of Judge Philyaw,
Respondent Britney Nicole W.] filed a notice of appeal to this
Court. The Father filed a Motion to Dismiss the appeal as an
appeal from the Judgment of the Juvenile Court in the paternity
action should be filed in the Court of Appeals in Knoxville,
Tennessee. The Court denied the Motion to Dismiss without
prejudice. The Father then filed a Motion Seeking Relief in the
Juvenile Court from that portion of the Order which indicated
without a basis in fact or law the existence of a dependency and
neglect proceeding or issue. Judge Philyaw heard the Motion
for relief and to correct the judgment which had been entered
in Juvenile Court. Judge Philyaw granted Father’s Motion and
corrected the Order. The entry of the Judgment referring to
dependency and neglect was merely a mistake and has been
corrected by the Judge who tried the case only on the issues of
paternity and custody. The corrected Order strikes from the
previous Order the language asserting that the matter was tried
as a dependency and neglect matter. This Court believes that
the Juvenile Court has properly determined that the action
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 which was tried before the Juvenile Court of Hamilton County
was, in fact, a paternity action. Such is supported by the
pleadings in the Juvenile Court, the Final Order and the
corrected Final Order. The issue which is sought to be appealed
to this Court is factually and legally a decision of a court with
competent jurisdiction as to the issues which were tried and
had original and co-equal jurisdiction with this Court to hear
the issues of paternity. Thus, an appeal, if any, should be made
to the Court of Appeals for the Eastern District of Tennessee
in Knoxville. Judge Philyaw’s Order properly asserts that the
Mother’s right of appeal is still available to the Mother and she
can present any issues contesting the decision of the Juvenile
Court to the Court of Appeals. Her rights to appeal as governed
by the Rules of Appellate Procedure are still available to her.

IT IS ACCORDINGLY ORDERED that the renewed
Motion to Dismiss is sustained. The appeal herein is dismissed
without prejudice to the rights of Britney Nicole W[.] to seek
an appeal to the Court of Appeals in Knoxville.

Appeals of the final orders from the circuit court as well as the juvenile court followed.
The appellate court clerk consolidated the cases into the matter before us on June 25, 2019.

II. ISSUES

We consolidate and restate the issues on appeal as follows:

A. Whether this action maintained its dependency and
neglect classification considering the evidence presented at
trial and the juvenile court’s decision.

B. Whether the circuit court erred in finding a lack of
subject matter jurisdiction over Mother’s de novo appeal.

C. Whether the juvenile court erred in amending its final
order after Mother appealed to the circuit court.

D. Whether the circuit court has proper subject matter
jurisdiction over the pending child support proceedings.

E. Whether the circuit court erred in dismissing Mother’s
de novo appeal.
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 III. STANDARD OF REVIEW

On appeal, factual findings of the trial court are extended a presumption of
correctness and will not be set aside unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002). Legal
conclusions of the trial court, which include determinations made concerning subject
matter jurisdiction, are reviewed de novo with no presumption of correctness. See Chaffin
v. Ellis, 211 S.W.3d 264, 285 (Tenn. Ct. App. 2006); Northland Ins. Co. v. State, 33 S.W.3d
727, 729 (Tenn. 2000); see also Vaccarella v. Vaccarella, 49 S.W.3d 307, 311 (Tenn. Ct.
App. 2001) (holding that “if outcome-affecting errors are found, we are required to grant
appropriate relief to the aggrieved party”). Mixed questions of law and fact also are not
accompanied by a presumption of correctness and are reviewed de novo, yet appellate
courts have “great latitude to determine whether findings as to mixed questions of fact and
law made by the trial court are sustained by probative evidence on appeal.” Aaron v.
Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); see also Murdock Acceptance Corp. v. Jones,
362 S.W.2d 266, 268 (Tenn. Ct. App. 1961).

IV. DISCUSSION

A. & B.

There are important procedural differences between filing a dependency and neglect
action and filing an action to establish paternity and visitation. First, juvenile courts have
exclusive original jurisdiction over dependency and neglect actions, but juvenile courts
share concurrent jurisdiction with chancery and circuit courts over matters involving
paternity and visitation. Tenn. Code Ann. § 37-1-103(a)(1) (2019); see P.E.K. v. J.M., 52
S.W.3d 653, 660 (Tenn. Ct. App. 2001). Second, an appeal from a dependency and neglect
action heard exclusively in juvenile court “may be made to the circuit court that shall hear
the testimony of witnesses and try the case de novo.” Tenn. Code Ann. § 37-1-159(a)
(2019); see Green v. Green, No. M2007-01263-COA-R3-CV, 2009 WL 348289, at *1, *8
(Tenn. Ct. App. Feb. 11, 2009). However, matters heard by a juvenile court exercising
concurrent jurisdiction “are governed by the Tennessee Rules of Appellate Procedure,
which provide that civil appeals are to be made to the Court of Appeals.” In re D.Y.H.,
226 S.W.3d 327, 329 (Tenn. 2007); see Tenn. R. App. P. 3.

Given these differences governing appeals and proper subject matter jurisdiction,
whether this action maintained its dependency and neglect characterization governs the
outcome of several legal issues present here. This case was originally filed by Father, who
was at the time pro se, using a form he received from the juvenile court. The first paragraph
of this form asserts that Father is representing that the named child “is a dependent and
neglected child within the meaning of the State of Tennessee.” However, in the next
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paragraph, where the petitioner is provided space to explain why the child is dependent and
neglected within the meaning of the law, Father wrote: “I would like to be granted custody
or, in the alternative, reasonable visitation and not having to pay child support.”

When the juvenile court reviewed Father’s motion to alter or amend its judgment
on September 12, 2018, the court observed: “There is no reference to any dependency and
neglect proceeding in the Court’s opinion from the same hearing and neither party alleged
dependency and neglect” in “any pleading, or argument, or allegation throughout the trial.”
The court suggested why the pro se petition form included dependency and neglect
language in the first place: “There are forms that have been used by this Court that existed
prior to this Court being elected and steps are being taken to remedy issues created by those
forms.” Therefore, not only did the proceeding fail to include any evidence or argument
related to dependency or neglect, but the form that Father used to file his petition was an
outdated, incorrect form that should not decide the nature of this case alone.

Previous cases from the Supreme Court as well as in this court have found that “[t]he
nature and substance of a proceeding cannot be transformed simply by the filing of a
petition with a different caption.” State Dept. of Children’s Servs. v. Owens, 129 S.W.3d
50, 54 (Tenn. 2004); see Clark v. Cooper, No. E2012-00684-COA-R3-CV, 2013 WL
1097773, at *1, *3 (Tenn. Ct. App. Mar. 18, 2013). Because “a judge’s stated
characterization of a matter may be mistaken,” reviewing courts “must look to the nature
of the action to determine its character.” Clark, 2013 WL 1097773, at *3; see also Holley
v. Holley, 420 S.W.3d 756, 760 (Tenn. Ct. App. 2013) (“We … must look to the substance
of the Petition to see if what it alleges is tantamount to alleging dependency and neglect
under the statute.”).

The substance of this matter, as the juvenile court found, is a paternity and visitation
action. Father was having difficulty continuing a relationship with the Child, so he turned
to the court seeking custody, or at the very least, visitation rights without having to pay
child support. Outside of the outdated, incorrect form, the only mention made to
dependency and neglect in this case was within the proposed order prepared by Mother’s
counsel that was signed by the court on March 29, 2018. When the mistake was brought
to the attention of the juvenile court by Father’s motion to alter or amend the judgment, the
court immediately corrected it by striking the dependency and neglect language. See Tenn.
R. Juv. P. 105(b). We affirm the juvenile court’s conclusion that the reference to neglect
and dependency was a mistake, and we find that the action between these parties is properly
characterized as an action to establish paternity and visitation.

Mother argues passionately in her brief that an action that begins as a dependency
and neglect proceeding remains as such. She contends that “[a] petition alleging
dependency and neglect, either expressly or in substance, implicates the original
jurisdiction of the juvenile court.” Holley, 420 S.W.3d at 760. While this is a true
statement of the law, it is only part of the picture. Reviewing courts “ultimately must look
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to the substance of what has been alleged,” beyond the pleadings, to properly decide what
characterization an action takes. Id.; see also Clark, 2013 WL 1097773, at *3. An action
characterized as a dependency and neglect proceeding in name only, without further
support in the record, pleadings, or decision, cannot be considered properly classified.

Mother relies on authorities instituted as dependency and neglect proceedings but
connected to child custody disputes that cause the entire action to carry the dependency
and neglect characterization. For example, in In re D.Y.H., the proceeding began with the
filing of a dependency and neglect petition. 226 S.W.3d at 331. After the juvenile court
determined that the child was dependent and neglected, custody was awarded to the father.
Id. Three years later, the mother filed a change in custody petition heard by the same
juvenile court “pursuant to its continuing dependency and neglect jurisdiction.” Id.; see
Tenn. Code Ann. § 37-1-103(c). In its review of the case, the Supreme Court held:

[W]ithout an interrupting event under section 37-1-103(c), a
subsequent decision by the juvenile court on whether to modify
an initial custody order will also arise from and be a part of the
dependency and neglect proceeding. This is true even if a
petition for a change in custody does not reference the
dependency and neglect hearing and even if it is filed years
after the final order is entered. Accordingly, any appeal from
such a custody decision is to be made to circuit court.

In re D.Y.H., 226 S.W.3d at 331. Similarly, in State Dept. of Children’s Servs. v. Owens,
the case began as a dependency and neglect proceeding against the adoptive parents of the
child in question. 129 S.W.3d at 56. Shortly after the action was filed, the couple that had
adopted the child’s biological siblings filed a petition to intervene in the proceeding seeking
custody of the child. Id. While both of these actions were pending, the Tennessee
Department of Children’s Services filed a petition to terminate the parental rights of the
child’s adoptive parents. Id. Because the juvenile court took up the termination of parental
rights petition first, the petition to intervene was deemed moot, leaving the couple seeking
to intervene without a remedy. Id. At the conclusion of the Supreme Court’s opinion, the
Court reversed the Court of Appeals and remanded the case to the circuit court to consider
the custody case related to the dependency and neglect action. Id. at 57. The Court
declared that the circuit court “shall regard the cause as involving dependency and neglect
and shall concurrently consider and decide all petitions within that context.” Id. Therefore,
the dependency and neglect character of the case remained an essential part of its
classification.

Mother argues that the case at bar should retain its original dependency and neglect
character as well because it began as such an action. She argues that like the two cases
above, although the appealed determination is mainly one of child custody, it cannot be
separated from its dependency and neglect origination. This argument, however, is again
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incomplete. In the two Supreme Court cases above, the dependency and neglect action
played a central role in the pleadings, evidence presented, and decisions made by the Court.
See In re D.Y.H., 226 S.W.3d at 331 (where the dependency and neglect action was
explicitly ruled on and found by the Court before the child custody action was added);
Owens, 129 S.W.3d at 56-57 (where the evidence and the pleadings in the record properly
demonstrated to the Court that the action’s nucleus was in the dependency and neglect
petition). In contrast, in this case, there is nothing established in the original pleadings, in
the juvenile court’s record, or in the juvenile court’s decision, that gives any evidence or
indication that this case is a dependency and neglect proceeding. Rather, the evidence,
record, and decision of the juvenile court all reveal the opposite—this case is solely a child
custody proceeding.

Because we find that this action is correctly characterized as a proceeding to
establish paternity and visitation, and not one related to dependency or neglect, we also
find that the circuit court did not err in finding a lack of subject matter jurisdiction in this
case. Subject matter jurisdiction refers to “a court’s power to adjudicate a particular type
of controversy.” Staats v. McKinnon, 206 S.W.3d 532, 541-542 (Tenn. Ct. App. 2006);
see Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Toms v. Toms, 98 S.W.3d 140,
143 (Tenn. 2003). Further, subject matter jurisdiction is determined by “the nature of the
cause of action and the relief sought and is conferred by the sovereign authority which
organizes the court.” Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994) (citing Turpin
v. Conner Bros. Excavating Co., Inc., 761 S.W.2d 296, 297 (Tenn. 1988)). As applied
here, the jurisdiction over child custody actions is concurrent and co-equal between circuit,
chancery, and juvenile courts. See Gilland v. Gilland, Nos. M2002-02276-COA-R3-CV,
M2002-02770-COA-R3-JV, 2004 WL 2583885, at *1, *3 (Tenn. Ct. App. Nov. 9, 2004);
see also Tenn. Code Ann. §§ 37-1-104 (2016) and 36-2-307 (1998). As such, appeals “are
governed by the Tennessee Rules of Appellate Procedure, which provide that civil appeals
are to be made to the Court of Appeals,” not to the circuit court. In re D.Y.H., 226 S.W.3d
at 329; Tenn. R. App. P. 3. The appeal to the circuit court was improper. Tenn. R. App. P.
3; see Meighan v. U.S. Sprint Commc’ns Co., 924 S.W.2d 632, 639 (Tenn. 1996).

C.

Unlike circuit or chancery courts, juvenile courts are courts of limited jurisdiction,
and the specific scope of jurisdiction of these courts is outlined by statute. Stambaugh v.
Price, 532 S.W.2d 929, 932 (Tenn. 1976); see Tenn. Code Ann. §§ 37-1-103 and 37-1-
104. Statutes delineating the juvenile court’s scope of jurisdiction provide areas of the law
where juvenile courts hold exclusive jurisdiction and where they share concurrent
jurisdiction with the circuit and chancery courts. Tenn. Code Ann. §§ 37-1-103 and 37-1-
104. Paternity and visitation actions are areas of the law where juvenile, circuit, and
chancery courts share concurrent, co-equal jurisdiction. P.E.K., 52 S.W.3d at 660. Thus,
an appeal of a custody action heard by the juvenile court is “governed by the Tennessee
Rules of Appellate Procedure.” Tenn. Code Ann. § 37-1-159(g); see Tenn. R. Juv. P.
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118(a).

The juvenile court’s final orders regarding the hearing of February 21, 2018,
adjudicated issues related to establishing paternity and visitation. See Tenn. R. Juv. P.
118(e); see also Hoalcraft v. Smithson, 19 S.W.3d 822, 827 (Tenn. Ct. App. 1999) (citing
State ex. rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App. 1997). The
juvenile court specifically “advised that [the parties had] thirty (30) days from the entry of
this Order to request an appeal to the Court of Appeals in Knoxville, Tennessee.” The
appeal rested within the jurisdiction of this court. Tenn. R. App. P. 3(a), (e). In the case at
bar, when Mother’s counsel appealed the juvenile court’s decision to the circuit court
asserting that this action was a dependency and neglect proceeding, he disregarded the
juvenile court’s directive that any appeal was to this court and initiated an improper appeal.
Tenn. Code Ann. § 37-1-159(g).

The confusion in this action arose due to the use of an outdated and incorrect form,
as well as the juvenile court judge signing an order prepared by Mother’s counsel that
labeled the case a dependency and neglect proceeding and left out the trial court’s directive
that any appeal was to this court. In our view, because Mother did not properly file an
appeal to the circuit court, the jurisdiction of that court did not attach. The juvenile court
retained jurisdiction to hear Father’s motion and act accordingly because an appeal as of
right had not been perfected. See Tenn. R. Juv. P. 118(e-f). Father properly moved the
juvenile court to set aside the previous final order and enter a new judgment. See Tenn. R.
Civ. P. 60.02. In the juvenile court’s September 12, 2018, order, it was decreed that the
judgment would be altered to “reflect that this matter came to be heard on a Petition to
Establish Paternity and Custody, and for the Court to adopt a Parenting Plan.” The order
also reiterated: “[t]he appeal from the Court’s Final Judgment remains to the Court of
Appeals and not the Circuit court.” Accordingly, we find that the juvenile court did not err
in granting Father’s motion to alter the judgment given that Mother’s appeal to the circuit
court was improper.

D. & E.

Under the current Hamilton County Juvenile Court System, bifurcated proceedings
are conducted for child support and child custody. Each case is set before a distinct
magistrate. Mother filed a separate claim for child support, which was assigned a separate
juvenile court docket number, 54548. Soon after Mother improperly appealed the juvenile
court’s February 21, 2018, order to the circuit court, she moved to join the pending child
support matter to her appeal filed in the circuit court for the sake of judicial economy. On
August 23, 2018, the circuit court judge granted Mother’s motion and added the pending
child support action to the appeal. Father argues that the child support matter should not
be heard in the circuit court because the appeal to the circuit court was improper.

Once the circuit court determined that it lacked jurisdiction to hear the main appeal
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from juvenile court, it properly dismissed Mother’s appeal. In view of that determination,
the judicial economy basis to retain the child support case lost all viability. Further, as
jurisdiction over the appeal did not attach, the transfer of the child support matter to the
circuit court was improper.

V. CONCLUSION

The judgment of the trial court is affirmed. The case is remanded for further
proceedings as may be necessary. Costs of the appeal are assessed to the appellant, Brittany
Nicole W.

JOHN W. McCLARTY, JUDGE

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