In Re: Kiersten Cierra Burchette ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned November 29, 2010
IN RE: KIERSTEN CIERRA BURCHETTE
Appeal from the Juvenile Court for Cocke County
No. 03799 A. Benjamin Strand, Jr., Judge
No. E2010-02132-COA-R3-JV - FIELD NOVEMBER 29,2010
This lawsuit involves whether custody of Kiersten Cierra Burchette (the “Child”) should be
changed from Carey A. Bible (“Mother”) to Chadwick J. Burchette (“Father”). Father filed
an emergency petition seeking custody. Father claimed, among other things, that the Child
was being sexually abused by Mother’s boyfriend. Although the emergency petition
eventually was dismissed, the Juvenile Court did designate Father as the Child’s primary
residential parent. The Juvenile Court, however, specifically reserved ruling on who should
pay certain medical expenses as well as a bill for the deposition of Father’s private
investigator. The Juvenile Court also reserved ruling on all child support issues. Mother
appeals. We dismiss this appeal for lack of a final judgment.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
D. M ICHAEL S WINEY, J., H ERSCHEL P. F RANKS, P.J., and JOHN W. M CC LARTY, J.
Scott Justice, Jefferson City, Tennessee, for the Appellant, Carey A. Bible.
Rebecca D. Slone, Dandridge, Tennessee, for the Appellee, Chadwick J. Burchette.
MEMORANDUM OPINION 1
Background
This lawsuit involves which parent should be designated as primary residential
parent of the Child. In September 2007, Father filed a petition for modification claiming
there had been a material change in circumstances and that it was in the Child’s best interest
for him to be designated as the Child’s primary residential parent. While the petition was
pending, Mother graduated from nursing school and filed a petition seeking to relocate with
the Child to Kingsport where Mother had found employment.
In August 2009, an ex parte order was entered temporarily transferring custody
of the Child to Father based on allegations of dependency and neglect. Father asserted that
the Child had been fondled by Mother’s boyfriend, Preston Salley. A guardian ad litem was
appointed on the Child’s behalf, and Mother was ordered not to allow Preston Salley around
the Child.
A hearing was held in December 2009, following which the Juvenile Court
dismissed Father’s emergency petition for custody. The Juvenile Court also determined that
the matter should proceed with “both parties . . . [being] allowed to proceed in a custody case
to determine which parent would be the primary residential parent.” The Juvenile Court
further ruled that, in the meantime, Father would remain the primary residential parent. The
no-contact order between Preston Salley and the Child remained in effect.
Following another hearing, in August 2010 the Juvenile Court determined that
Father should be designated as the Child’s primary residential parent and set forth Mother’s
co-parenting time. Various issues were reserved for later ruling, including payment of
medical expenses and a bill for the deposition of Father’s private investigator. The Juvenile
Court also reserved all child support issues. Mother appeals.
1
Rule 10 of the Rules of the Court of Appeals provides: “This Court, with the concurrence of all
judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum
opinion when a formal opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated ‘MEMORANDUM OPINION,’ shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.”
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Discussion
The Tennessee Rules of Appellate Procedure define an appeal as of right from
a final judgment as follows:
In civil actions every final judgment entered by a trial court from
which an appeal lies to the Supreme Court or Court of Appeals
is appealable as of right. Except as otherwise permitted in Rule
9 and in Rule 54.02 Tennessee Rules of Civil Procedure, if
multiple parties or multiple claims for relief are involved in an
action, any order that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties is not
enforceable or appealable and is subject to revision at any time
before entry of a final judgment adjudicating all the claims,
rights, and liabilities of all parties.
Tenn. R. App. P. 3(a). The parties to this appeal have not filed an application for an
interlocutory appeal pursuant to Rules 9 or 10 of the Rules of Appellate Procedure, and the
order appealed from the Juvenile Court has not otherwise been made final.
A final judgment is “one that resolves all the issues in the case, ‘leaving
nothing else for the trial court to do.’” In re Estate of Henderson, 121 S.W.3d 643, 645
(Tenn. 2003) (quoting State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct.
App. 1997)). “[A]ny trial court order that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties is not final or appealable as of right.” State ex rel.
Garrison v. Scobey, No. W2007-02367-C0A-R3-JV, 2008 WL 4648359, at *5 (Tenn. Ct.
App. Oct. 22, 2008). This Court does not have subject matter jurisdiction to adjudicate an
appeal if there is no final judgment. The Tennessee Supreme Court has recognized that
“[u]nless an appeal from an interlocutory order is provided by the rules or by statute,
appellate courts have jurisdiction over final judgments only.” Bayberry Assocs. v. Jones, 783
S.W.2d 553, 559 (Tenn. 1990). See also Ruff v. Raleigh Assembly of God Church, Inc., 241
S.W.3d 876, 877 at n.1 (Tenn. Ct. App. 2007).
In the present case, the Juvenile Court specifically reserved ruling on several
issues, including child support. Because the order appealed from is not a final judgment, this
Court does not have subject matter jurisdiction, and this appeal must be dismissed.
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Conclusion
This appeal is dismissed, and this cause is remanded to the Juvenile Court for
Cocke County for further proceedings consistent with this Opinion and for collection of the
costs below. Costs on appeal are taxed to the Appellant, Carey A. Bible, and her surety, for
which execution may issue, if necessary.
PER CURIAM
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