IN RE: The adoption of Brandon Kain Dicus Scott Steel and Darla Steel v. Maryl Lou Dicus - Concurring ( 1997 )

IN RE: The Adoption of )
BRANDON KAIN DICUS )
)
SCOTT STEEL and DARLA STEEL, )
)
Plaintiffs/Appellees, ) Appeal No.
) 01-A-01-9611-CH-00502
v. )
) Wayne Chancery
MARY LOU DICUS, ) No. 8735 & 9656
)
Defendant/Appellant. )
FILED
COURT OF APPEALS OF TENNESSEE
May 9, 1997
MIDDLE SECTION AT NASHVILLE
Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT FOR WAYNE COUNTY
AT WAYNESBORO, TENNESSEE
THE HONORABLE JIM T. HAMILTON, CHANCELLOR
BEN BOSTON
CHRISTOPHER V. SOCKWELL
Boston, Bates, Holt & Sockwell
235 Waterloo Street
P. O. Box 357
Lawrenceburg, Tennessee 38464
ATTORNEYS FOR PLAINTIFFS/APPELLEES
J. DOUGLAS DICUS
P. O. Box 1119
210B South Main Street
Waynesboro, Tennessee 38485
ATTORNEY FOR DEFENDANT/APPELLANT
AFFIRMED AND REMANDED
SAMUEL L. LEWIS, JUDGE
OPINION
This is an appeal by defendant, Mary Lou Dicus, from the decision of the
chancery court to set aside the court’s order of 18 October 1993 which amended the
court’s order of adoption filed on 24 August 1993. The facts out of which this matter
arose are as follows.
In December 1981, Darla Steele gave birth to Brandon Dicus Kain. Mrs.
Steele was not married to the child’s father, Scott Steele, at the time of the child’s
birth. The maternal grandfather, George Albert Dicus, and step-grandmother, Mary
Lou Dicus, cared for the child from the beginning. The Steeles married in 1986. On
14 April 1992, the Dicuses and the Steeles signed a consent order granting custody
of the child to the Dicuses.
On 27 April 1992, the Dicuses filed a petition for adoption. The Dicuses
later amended their petition to include an allegation that the Steeles had abandoned
the child. The Chancery Court for Wayne County initially heard the matter in August
1993. The court found the Steeles had abandoned the child despite the fact they had
not turned their backs on the child. The court entered an order on 24 August 1993
and granted the adoption to Mr. Dicus. The Dicuses later filed a timely motion to
amend seeking to have Mrs. Dicus added as an adoptive parent. The court heard the
motion and filed an amended order of adoption with the clerk on 18 October 1993
allowing Mrs. Dicus to adopt the child. The 18 October 1993 order was not served
upon either party or their counsel and did not contain a certificate of service.
Mr. Dicus passed away in September 1995. On 4 March 1996, the Steeles
filed a motion pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure
requesting the court dissolve the 18 October 1993 amended order of adoption and
restore custody to the Steeles. On this same day, the Steeles filed a complaint
requesting the court set aside the 18 October 1993 order of adoption, issue a
restraining order prohibiting Mrs. Dicus from maintaining custody of the child, and
restore custody to the Steeles. The court entered a final judgment expressly
addressing both the motion and the complaint on 31 May 1996.
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The final judgment stated:
ORDERED, ADJUDGED AND DECREED that the Order
entered August 24, 1993, was not the entire judgment of this
Court, and it is now my duty, to make the record speak the truth,
and I think this is a proper case to enter an Order nunc pro tunc
which the proof clearly and convincingly supports, not only from
the original hearings in 1993, but from the subsequent hearings
in 1996, that the judgment which is sought to be enforced is the
one that was pronounced in the cause. The Order entered August
24, 1993, should have read at the bottom of Page 2,
It is, therefore, ORDERED by the Court that the child,
Brandon Kain Dicus, has been abandoned by his natural
parents, Scott and Darla Steel [sic], pursuant to T.C.A. §36-
1-110, and this adoption is granted to petitioner, George
Albert Dicus, to adopt Brandon Kain Dicus.
IT IS FURTHER ORDERED that the sole purpose
for this adoption is so that Brandon Kain Dicus
will be eligible for a Social Security check, and
said check shall be deposited in a financial
institution, in an interest bearing account and held
for Brandon Kain Dicus until his 18th birthday at
which time said funds shall be released to him
which will assure him of some stability in his
future and hopefully provide him with a college
education.
IT IS FURTHER ORDERED that the Interlocutory
Decree be waived.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the Amended Order filed October 18, 1993, was
improper and shall be withdrawn nunc pro tunc.
The court then concluded it was in the child’s best interest to award custody to the
Steeles because of the improper guardianship or control that he had while under the
care of Mrs. Dicus. Thereafter, Mrs. Dicus filed a timely notice of appeal.
The resolution of the issues in this case is not a simple task. Nevertheless,
we will do our best to properly and effectively address the issues presented in this
appeal.
It is the opinion of this court that the order filed on 18 October 1993
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amending the 24 August 1993 order was never effective. To explain, Rule 58 of the
Tennessee Rules of Civil Procedure provides:
Entry of a judgment or an order of final disposition is
effective when a judgment containing one of the following is
marked on the face by the clerk as filed for entry:
(1) the signatures of the judge and all parties or counsel,
or
(2) the signatures of the judge and one party or counsel
with a certificate of counsel that a copy of the proposed order has
been served on all other parties or counsel, or
(3) the signature of the judge and a certificate of the clerk
that a copy has been served on all other parties or counsel.
When requested by counsel or pro se parties, the clerk shall mail
or deliver a copy of the entered judgment to all parties or counsel
within five days after entry.
Tenn. R. Civ. P. 58 (West 1996). Thus, an order is not effective if it does not comply
with Rule 58. The 18 October order failed to comply with Rule 58 because the only
signature on the order was the judge’s and there was no certificate of service. The
order was never effective.
The issue then becomes: How does this conclusion affect the current state
of the case. Pursuant to Rule 58 the order might as well have never existed. Thus,
the result is that the trial court never ruled on the motion to amend the 24 August
order and that motion was still pending before the court when it held the most recent
hearing and filed the judgment currently before this court on appeal. In addition,
there was no final judgment from which the Steeles could appeal because the motion
was still pending. Pursuant to Rule 4(b) of the Rules of Appellate Procedure the
thirty day time limit for filing a notice of appeal never began to run. Thus, at the time
of the most recent hearing, the trial court was faced with an undecided motion to
amend and the most recent complaint and motion.
It is the opinion of this court that the chancery court addressed the motion
to amend in its final judgment and that the conclusions reached by the court were
correct. By withdrawing the 18 October order nunc pro tunc, the court clearly
expressed its intent to award adoptive rights to Mr. Dicus only. In addition, the court
expressed a need to add certain language concerning the child’s receipt of social
security benefits to the 24 August order. As such, the trial court, in effect, addressed
the motion to amend by adding findings to the 24 August order and by denying Mrs.
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Dicus’s request to be included as an adoptive parent.
After addressing the motion to amend, the court turned to the custody issue
and determined it was in the best interest of the child to remain in the custody of the
Steeles. The court stated:
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the best interest of Brandon Kain Dicus will be
served if he is placed in the home of his natural parents, Scott and
Darla Steel [sic]. (Darla Steel [sic] is legally his sister because of
the granting of the adoption to George Albert Dicus.) There is no
question in the Court’s mind and the Court is convinced by clear
and convincing evidence that since the death of George Albert
Dicus that when Brandon has been in the home of Mary Lou
Dicus that he is in such a condition of want and suffering and is
under improper guardianship and control that he is endangering
the morals and health of himself and others. This conclusion is
clearly and convincingly supported by the testimony of Brandon
Kain Dicus, and Officers Rich and Jerrolds. When he is in the
home of Scott and Darla Steel [sic], he has no disciplinary
problems, his grades and school attendance are good, and he is
happy. That his school attendance is habitually and without
justification poor, and he is habitually disobedient of the
reasonable and lawful commands of Mary Lou Dicus and is
ungovernable when with her.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that placing Brandon Kain Dicus with his natural
parents, Scott and Darla Steel [sic], presents the least drastic or
restrictive alternative and would be in his best interest to place
him in their home.
Our review of the findings of facts in this case is “‘de novo upon the record
of the trial court, accompanied by a presumption of the correctness of the finding,
unless the preponderance of the evidence is otherwise.’” Hass v. Knighton, 676
S.W.2d 554, 555 (Tenn. 1984) (quoting Tenn. R. App. P. 13(d)). It is the opinion of
this court that the evidence does not preponderate against the findings of the trial
court. Mrs. Dicus argues in her brief that the court could not award custody to the
Steeles unless it terminated her parental rights. The problem here is that neither Mrs.
Dicus nor the Steeles had any legally recognized parental rights as to the child.
Instead, Mrs. Dicus is technically the child’s step-mother and Mrs. Steele is his sister.
Taking these facts into consideration along with the evidence, it is the opinion of this
court that the chancery court did not err when it awarded legal custody to the Steeles.
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It results that the judgment is affirmed, and the cause is remanded to the trial
court for any further necessary proceedings. Costs on appeal are taxed to the
defendant/appellant, Mary Lou Dicus.
_______________________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
_____________________________________
BEN H. CANTRELL, JUDGE
_____________________________________
WILLIAM C. KOCH, JR., JUDGE
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