In re Gabrielle R. ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 21, 2016 Session
IN RE GABRIELLE R., ET AL.
Appeal from the Juvenile Court for Shelby County
No. Y1320 Dan H. Michael, Judge
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No. W2015-00388-COA-R3-JV – Filed March 17, 2016
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Following an announcement in open court that the parties agreed to the terms of a permanent
parenting plan, the trial court entered an order purporting to adopt the agreed-upon plan.
Father appeals from this order, arguing that certain terms of the plan entered by the trial court
do not match the announced agreement. Having reviewed the record, we observe that there is
neither an attached child support worksheet reflecting what Father‟s child support would be
based on the modified parenting schedule, nor any ruling on child support by the trial court.
Accordingly, we conclude that the order appealed is not a final judgment so as to confer
jurisdiction on this Court. Tenn. R. App. P. 3. Accordingly, we dismiss this appeal and
remand the case for further proceedings consistent with this Opinion.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which KENNY ARMSTRONG, J.,
joined. J. STEVEN STAFFORD, P.J., W.S., filed a dissenting opinion.
J. Vincent Perryman, Memphis, Tennessee, for the appellant, Isaac R.
Terita Hewlett Riley, Memphis, Tennessee, for the appellee, Takara F.
OPINION
Background and Procedural History
The parties in this case, Isaac R. (“Father” or “Appellant”) and Takara F. (“Mother” or
“Appellee”),1 are the parents of two minor children, both of whom were born out of wedlock.
Prior to the instant proceedings, the Hamilton County Juvenile Court set Father‟s support
1
In cases involving minor children, it is this Court‟s policy to redact names in order to protect the children‟s
identities.
payments. The case was eventually transferred to Shelby County. Following the transfer, the
Shelby County Juvenile Court entered an order on September 12, 2012 increasing Father‟s
monthly support payments from $624.00 to $916.00 based on the birth of the parties‟ second
child. Although Mother subsequently moved for relief from this support order, arguing that
Father had withheld information concerning his income, she later voluntarily dismissed her
motion.
On February 27, 2013, Father filed a petition to set visitation with the children.
Among other things, the petition alleged that Mother had refused to allow Father his regular
visits and had limited Father‟s parenting time as a means of increasing his child support
obligation. On May 23, 2013, Father filed an “Amended Petition for Custody.” Although
this amended petition contained many of the same allegations that were set forth in Father‟s
February 27 petition, by his amended petition, Father sought primary residential custody of
the children. In pertinent part, the petition averred that it was “not in the best interest of the
children to continue to reside with Mother as she [was] suffering from depression and other
issues.”
On September 4, 2013, Father‟s petition was heard by a Juvenile Court magistrate.
After considering the proof, the magistrate recommended that a joint custody arrangement be
implemented. The magistrate‟s written findings, which were filed on October 3, 2013,
specifically stated that: “[I]t is in the best interest of [the] children to be placed in the joint
custody of both parents with the mother being the primary residential parent in odd years and
the father being the primary residential parent in even years.” Following the ruling of the
magistrate, Mother requested a hearing before the Juvenile Court Judge.
Immediately prior to the trial, which was scheduled for December 16, 2013, the parties
announced that they had reached an agreement. After the specific terms of the parties‟
agreement were recited in open court, the trial court asked the parties if the announced terms
were consistent with their agreement. The parties affirmed, under oath, that they were, and
the trial court requested that Father‟s counsel prepare an order adopting the parties‟
agreement. Notwithstanding the parties‟ announcement in open court of the terms of the
agreement and the court‟s instruction for Father‟s counsel to prepare the order, no order was
ever entered. Indeed, court filings made subsequent to the announcement evidence a lack of
consensus as to the nature of the agreement that the parties had reached. On January 10,
2014, Father filed a motion to reduce the announced settlement to an order and attached his
proposed parenting plan as an exhibit. In his motion, Father asserted his belief that Mother
would not abide by the announced agreement unless it was reduced to an order. On May 14,
2014, Mother filed her own proposed parenting plan, which she then amended on October
17, 2014.
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On December 22, 2014, the Juvenile Court entered an order, without any further
hearing or presentation of any proof, purporting to adopt the parties‟ “announced agreement.”
Specifically, the court held that the “agreed” parenting plan submitted by Mother on October
17, 2014 should be incorporated by reference. On December 31, 2014, Father filed a motion,
pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure, for relief from the
December 22 judgment. In his motion, Father argued that he had never been provided with a
copy of the adopted plan prior to its submission to the court. Moreover, he stated that he had
not agreed to several of the terms of the plan that was actually entered. On February 17,
2015, Father‟s motion for relief was denied by a Juvenile Court Special Judge. This appeal
followed.2
Issues Presented
In his appellate brief, Father raises one issue for our review:
1. Whether the trial court erred in entering an agreed order that was not
signed by both parties nor was consistent with the agreement
announced on the record more than one year prior to the entry of the
agreed order after it was clear that the parties no longer agreed.
Although Mother‟s brief identifies two issues, they implicate the same basic concerns that
Father raises. As restated slightly from her brief, Mother‟s issues are:
1. The trial court was correct in entering the December 22, 2014 order
regardless of the signing of both parties, after the court placed the
parties under oath and was assured this was each party‟s agreement.
2. The December 22, 2014 trial court order is consistent with the parties‟
agreement on the record.
Discussion
Although Father‟s brief asks us to consider the propriety of the trial court‟s December
22, 2014 order, we must begin our review by first considering whether we have jurisdiction
over the subject matter of the case. See Tenn. R. App. P. 13(b) (stating that the appellate
court “shall” consider whether it has jurisdiction “whether or not presented for review”).
“Unless an appeal from an interlocutory order is provided by the rules or by statute, appellate
2
The notice of appeal in this matter was filed on January 21, 2015, prior to the disposition of the
Rule 60.02 motion.
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courts have jurisdiction over final judgments only.” Bayberry Assocs. v. Jones, 783 S.W.2d
553, 559 (Tenn. 1990) (citation omitted). A judgment is a final “„when it decides and
disposes of the whole merits of the case leaving nothing for the further judgment of the
court.‟” Roberts v. Vaughn, No. W2008-01126-COA-R3-CV, 2009 WL 1608981, at *4
(Tenn. Ct. App. June 10, 2009) (quoting Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d
446, 460 (Tenn. 1995)). “In contrast, an order that adjudicates fewer than all of the claims,
rights, or liabilities of all the parties is not final, but is subject to revision any time before the
entry of a final judgment.” In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003)
(citation omitted). In this Tenn. R. App. P. 3 appeal, as of right, the order appealed was not
certified as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure.
Accordingly, a determination that it represents a final judgment is a condition precedent to
our exercise of jurisdiction.
Having reviewed the record, it is apparent that the adopted parenting plan does not
specify a particular amount of child support. At oral argument, counsel for Father stated that
child support had been decided in a separate order, which was entered on September 12,
2012. Although we acknowledge that child support was addressed by the Shelby County
Juvenile Court, it did so outside the context of the proceedings related to Father‟s petition for
visitation and custody, which are the subject of this appeal. The issue of child support should
have been revisited in the parenting plan adopted pursuant to the December 22, 2014 order.
See Schreur v. Garner, No. M2010-00369-COA-R3-CV, 2011 WL 2464180, at *6 (Tenn. Ct.
App. June 20, 2011) (noting that the “change in the residential parenting schedule was the
trigger for the modification of child support”). If, on reconsideration of the child support
issue, the trial court found a significant variance, it should have modified the support
obligation pursuant to the Child Support Guidelines. Because the trial court did not revisit
the child support issue incident to its modification of the parenting plan, the December 22,
2014 order is not a final judgment as it does not adjudicate all issues. Accordingly, we do
not have jurisdiction to hear this appeal.
In Leonardo v. Leonardo, No. M2014-00372-COA-R3-CV, 2015 WL 3852802 (Tenn.
Ct. App. June 18, 2015), perm app. granted (Tenn. Nov. 24, 2015), this Court addressed the
issue of child support following the modification of a permanent parenting plan in a post-
divorce case. In addition to arguing that the trial court erred in modifying the parties‟
parenting plan, the appellant/mother in Leonardo asserted error due to the trial court‟s sua
sponte decision to modify the father‟s child support obligation in the absence of any pleading
requesting such relief. Id. at *3. In Leonardo, the majority affirmed the trial court‟s decision
to modify child support in light of the modification to the parties‟ parenting schedule. In
pertinent part, the majority opinion concluded that: “[A] petition to modify visitation time or
the primary residential parent necessitates a recalculation of child support so long as the
opposing party received adequate notice of the petition and so long as there is a significant
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variance in accordance with the Tennessee Child Support Guidelines.” Id. at *7. Although
our State Supreme Court granted permission to appeal in Leonardo and vacated the majority
opinion solely with respect to the modification of child support, we do not interpret the
Supreme Court‟s action in Leonardo as a reversal of our holding that a change in a child‟s
residential schedule is sufficient to require a trial court to revisit child support and modify
support if a significant variance exists. Indeed, the Supreme Court remanded the case to the
trial court “with the direction that the trial court permit discovery and conduct a hearing on
the issue of the appropriateness of any modification of child support and the proper amount
of child support if it is determined that child support is appropriately subject to
modification.” Leonardo v. Leonardo, No. M2014-00372-SC-R11-CV (Tenn. Nov. 24,
2015). Had the Supreme Court disagreed with our substantive holding in Leonardo, it would
have reversed this Court or would have determined that the issue of child support was not
before the trial court and thereby negated the requirement that a trial court revisit child
support when it changes a residential parenting schedule. If the Supreme Court had
disagreed with our legal position on that issue, there would have been no need for its remand
for discovery and a hearing on child support. As we interpret it, the Supreme Court‟s
mandate that the trial court inquire into the “appropriateness of any modification” relates to
whether a significant variance existed, not to whether a modification was appropriate in the
absence of a pleading requesting relief related to child support.
Failing to require a trial court to revisit child support incident to a modification of the
parenting schedule poses a serious threat to children‟s welfare. “Child support payments are
for the benefit of the child, and both parents have a duty to support their minor children.”
Hopkins v. Hopkins, 152 S.W.3d 447, 490 (Tenn. 2004) (citation omitted). Holding
otherwise would only undermine our trial courts‟ authority to exercise continuing jurisdiction
over the care of the children of this State.
Conclusion
Because the order appealed is not a final judgment, we dismiss the appeal for lack of
subject matter jurisdiction. Costs of this appeal are assessed against the Appellant/Father,
Isaac R., for which execution may issue if necessary. This case is remanded to the trial court
for the collection of costs, enforcement of the judgment, and for such further proceedings as
may be necessary and are consistent with this Opinion.
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ARNOLD B. GOLDIN, JUDGE
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