In the Matter of E.J.M. d.o.b. 10/31/1994, Lee T. Myers v. Sandra Brown ( 2006 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 22, 2006 Session
IN THE MATTER OF E.J.M., d.o.b. 10/31/1994
LEE T. MYERS v. SANDRA BROWN
A Direct Appeal from the Circuit Court for Shelby County
No. CT-002027-05 The Honorable John McCarroll, Judge
No. W2005-02520-COA-R3-CV - Filed July 25, 2006
This is a child custody case which originated in juvenile court. On March 24, 2005, the court
entered an order which, inter alia, awarded joint custody to the parties, with the mother being the
primary custodian. Relying on Local Rule 15 of the Shelby County Juvenile Court, father timely
appealed to the Circuit Court of Shelby County. By order entered October 11, 2005, the circuit court
dismissed the appeal for lack of subject matter jurisdiction. On October 28, 2005, father filed a
notice of appeal in the circuit court, appealing the final judgment of dismissal in the circuit court and
the final judgment of the juvenile court entered on March 24, 2005. We vacate the order of the
circuit court dismissing the case and remand the case to the trial court with directions to enter an
order transferring this appeal to the Court of Appeals.
Tenn. R. App. P. 3; Appeal as of Right; Order of Circuit Court Vacated and Remanded
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY M. KIRBY , J., joined.
Mitchell D. Moskovitz and Adam N. Cohen of Memphis, Tennessee for Appellant, Lee T. Myers
No Appearance by Appellee
OPINION
Petitioner/Appellant, Lee T. Myers (“Father”), and Respondent/Appellee, Sandra Brown
(“Mother”), are the natural parents of the minor child, E.J.M., born October 31, 1994. The parents
were never married. In June 1995, pursuant to a voluntary acknowledgment of Father’s paternity,
the juvenile court entered an order of legitimation.
With only short periods of peace, a protracted and contentious atmosphere prevailed,
primarily concerning custody, visitation, and decision making for the child’s welfare. Numerous
petitions were filed by each of the parties dealing with the alleged shortcomings of the other party
in those areas. The case has been before this Court on more than one occasion, and it appears from
statements of counsel, there is presently another case pending in this Court involving these parties.
This appeal involves the March 24, 2005 order of the juvenile court that confirmed as the
decree of the court findings and recommendations of the referee, which states:
FINDINGS AND RECOMMENDATIONS OF REFEREE
This cause came on to be heard before the Honorable Cary C. Woods,
Referee of the Juvenile Court of Memphis and Shelby County,
Tennessee; all parties of interest were before the Court, and upon
proof introduced and the entire record, the Referee finds that:
1. The Petition for Contempt and To Modify Chid Support Order
filed in this Court on February 25, 2004 should be dismissed.
2. The Petition for Contempt; To Modify Primary Residential Status;
or in the Alternative for Injunctive Relief filed in this Court on April
30, 2004 should be sustained.
3. The Guardian Ad Litem’s Petition for Contempt Against Mother,
Sandra Brown, filed in this Court on February 1, 2005 should be
sustained.
4. The Petition to Modify Primary Residential Status and For
Contempt filed in this Court on February 1, 2005 should be
dismissed.
5. The defendant, Sandra Brown, was and is able to comply with the
Court’s order of visitation.
6. The defendant, Sandra Brown, is in contempt of the Court.
IT IS THEREFORE RECOMMENDED
1. That said child be removed from the custody of the mother, Sandra
Brown.
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2. That joint custody of said child shall be awarded to the mother,
Sandra Brown, and the father, Dr. Lee T. Myers, with Sandra Brown
being the primary custodian.
3. That the mother of said child, Sandra Brown, shall consult with
the father of said child, Dr. Lee T. Myers, with any major decisions
concerning said child, such as educational, medical, or health
decisions.
4. That the mother of said child, Sandra Brown, shall pay attorney
fees in the amount of $1,000.00 to attorney Adam N. Cohen.
5. That Sandra Brown shall pay the costs for which execution may
issue.
On March 24, 2005, Father filed a Notice of Appeal from the juvenile court to the Circuit
Court of Shelby County, Tennessee, pursuant to the provisions of Rule 15, of the Local Rules of the
Shelby County Juvenile Court. On October 11, 2005, the circuit court entered an order dismissing
the appeal, stating:
Despite Rule 15 of the Local Rules of Juvenile Court, this Honorable
Court lacks subject matter to entertain Father’s appeal. As such,
Father’s appeal to this Honorable Court shall be dismissed, and
Father must pursue his appeal with the Court of Appeals, Western
Section at Jackson.
On October 28, 2005, Father filed a Notice of Appeal in the Circuit Court of Shelby County,
which states:
Notice is hereby given that Lee Myers named, hereby appeals to the
Court of Appeals of Tennessee, Western Section at Jackson from the
final judgment of the Circuit Court of Shelby County, Tennessee at
Memphis, entered in this action on the 11th day of October, 2005 –
Order of Dismissal; and from the final judgment of the Juvenile Court
of Shelby County, Tennessee at Memphis, entered in this action on
the 24th day of March,2005.
Appellant seeks relief from the judgment of the juvenile court, entered March 24, 2005, set
out above. In order for this Court to reach the substantive issue, this Court must have jurisdiction
of the appeal. In the first instance, we have jurisdiction of the appeal to determine whether the trial
court erred in dismissing Appellant’s appeal from the juvenile court to the circuit court. T.C.A. §
37-1-159 (2005), Appeals, states in pertinent part:
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(a) The juvenile court shall be a court of record; and any appeal from
any final order or judgment in a delinquency proceeding, filed under
this chapter, except a proceeding pursuant to § 37-1-134, may be
made to the criminal court or court having criminal jurisdiction that
shall hear the testimony of witnesses and try the case de novo; and
any appeal from any final order or judgment in an unruly child
proceeding or dependent and neglect proceeding, filed under this
chapter, may be made to the circuit court that shall hear the testimony
of witnesses and try the case de novo. . . .
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(g) Appeals in all other civil matters heard by the juvenile court shall
be governed by the Tennessee Rules of Appellate Procedure.
In Anthony v. Rodgers, No. W2002-01240-COA-R3-CV, 2003 WL 22213208 (Tenn. Ct.
Appeals Sept. 23, 2003), the Court held that this Court, and not the Circuit Court of Shelby County,
could properly exercise subject matter jurisdiction over the trial court’s custody determination. Id.
at *2. The general law promulgated by our legislature establishes that jurisdiction of appeals in
custody matters is to the Court of Appeals. When a private act or rule of court is in conflict with the
general statute, the private act or rule must give way in favor of the general act. Nichols v. King, 190
Tenn. 573, 230 S.W.2d 1006, 1011 (1950); Richie v. Liberty Cash Grocers, Inc., 471 S.W.2d 559,
562 (Tenn. Ct. App. 1971). Rule 15 of the local rules of the juvenile court provides that “any
disposition of a child, except transfer of a juvenile to criminal court to be dealt with as an adult, shall
be to the circuit court.” Acting on this rule, the Appellant appealed to the circuit court. As noted,
the trial court dismissed the appeal, rightfully holding that the trial court did not have jurisdiction,
based upon T.C.A. § 37-1-159 (g). We agree that the trial court did not have jurisdiction to hear the
appeal in this case. However, the trial court, instead of dismissing the appeal, should have
transferred the appeal to the Court of Appeals.
In In Re: Estate of White, 77 S.W.3d 765 (Tenn. Ct. App. 2001), this Court was dealing with
an appeal from the Giles County General Sessions Court, exercising probate jurisdiction, and the
appeal was mistakenly taken to the Chancery Court for Giles County. The trial court determined that
it lacked appellate jurisdiction to review the decisions of the Giles County Probate Court with regard
to the probate of a will and dismissed the appeal. This Court said:
However, the trial court erred by dismissing the portion of Ms.
White's petition seeking appellate review of the probate court's
decisions. When a case has been appealed to the wrong appellate
court, Tenn. Code Ann. § 16-4-108(a)(2) provides that it should be
"transferred to the court having jurisdiction thereof." Relying on this
statute, the Tennessee Supreme Court vacated a judgment affirming
a circuit court's dismissal of an appeal from a probate court and then
remanded the case with directions that it be transferred to this court.
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In re Estate of Williams, Madison Law (Order granting Tenn. R. App.
P. 11 application and amending judgment) (Tenn. Nov. 18, 1985).
Accordingly, on remand, the trial court is directed to enter an order
transferring Ms. White's petition for appellate review to this court for
further proceedings.
Id. at 769.
The record reflects that the appeal to the circuit court from the juvenile court was timely, and
the appeal should have been transferred to the Court of Appeals. Accordingly, the order of the
circuit court dismissing the appeal is vacated, and the case is remanded to the circuit court with
directions for the circuit court to enter an order transferring the appeal to the Court of Appeals.
When the case is again docketed in this Court, Appellant may rely upon his brief filed in this appeal,
upon notifying the clerk of the Court that he will do so. Costs of this appeal are assessed against the
Appellant, Lee T. Myers, and his surety.
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W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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