Loring Justice v. Kim Nelson

09/14/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 22, 2018 Session
LORING JUSTICE V. KIM NELSON
Appeal from the Juvenile Court for Roane County
No. 2017-JC-85 Larry Michael Warner, Judge
No. E2017-02009-COA-R3-JV
Father appeals the trial court’s dismissal of his complaint for modification of the court’s
order adopting a permanent parenting plan in a previous custody action. Subsequent to
Father’s filing of this appeal, he filed a similar or identical petition for modification in the
original custody action, and the trial court is scheduled to hear that petition prior to the
adjudication of this appeal. We have, therefore, determined that this appeal is moot.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., and THOMAS R. FRIERSON, II, J., joined.
B. Chadwick Rickman and Linn M. Guerrero Justice, Knoxville, Tennessee, for the
appellant, Loring E. Justice.
David Lawrence Valone, Knoxville, Tennessee, for the appellee, Kim Nelson.
MEMORANDUM OPINION1
FACTUAL AND PROCEDURAL BACKGROUND
Kim Nelson (“Mother”) and Loring Justice (“Father”) are the parents of a son born
in February 2005 and have been in litigation since before the child’s birth concerning
1
Tennessee Court of Appeals Rule 10 states:
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opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and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.
several issues including paternity, the primary residential parent, and child support in
proceedings filed in the Juvenile Court for Roane County, No. 16002. On April 11, 2017,
the juvenile court entered an order in case number 16002 that included a parenting plan
awarding Mother sole residential custody and granting Father restricted parenting time
with a schedule for gradually increasing Father’s parenting time.
Father filed a complaint for modification on June 6, 2017, alleging a material
change of circumstances had occurred because Mother would not allow the child to
attend Father’s wedding and the order was adversely affecting the child and impairing his
relationship with Father. The petition for modification was given a new case number in
the juvenile court, No. 2017-JC-85, which is the instant appeal.2 In his petition, Father
requested that he be named the primary residential parent or, in the alternative, that he be
granted liberal residential parenting time and that the child be allowed to attend his
wedding. Father subsequently filed an amended petition alleging that Mother refused to
inform him of important events in the child’s life, including medical appointments,
illnesses, and extracurricular activities; and that, despite her obligation to choose a
therapist to monitor the progression of the case, Mother had refused to do so. Mother
moved to dismiss Father’s petition for modification on grounds of res judicata, failure to
state a claim, prior suit pending, and forum shopping. The trial court granted Mother’s
motion.
Father appeals the trial court’s dismissal of his complaint for modification.
ANALYSIS
As part of this appeal, Mother filed a motion to supplement the record, and this
Court learned from that motion that, subsequent to the filing of the instant appeal, Father
filed a petition for modification under the original case number (No. 16002) that is
similar or the same as the petition for modification filed in this case (No. 2017-JC-85).
Counsel for the parties represented at oral argument that the petition in the original case
(No. 16002) was scheduled to be heard August 28-30, 2018.
Because Father filed duplicate petitions in two different cases, we have determined
that this appeal is moot. Even if we were to agree with Father’s position, no effective
relief would be possible in this case. The mootness doctrine is rooted in the idea that it is
“‘the province of a court . . . to decide, not advise, and to settle rights, not to give abstract
opinions.’” Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cnty., 301 S.W.3d
196, 203 (Tenn. 2009) (quoting State v. Wilson, 70 Tenn. 204, 210 (1879)). “A case will
be considered moot if it no longer serves as a means to provide some sort of judicial
relief to the prevailing party.” Alliance for Native Am. Indian Rights in Tenn., Inc. v.
Nicely, 182 S.W.3d 333, 338 (Tenn. Ct. App. 2005). The proceedings in the original case
2
In a separate appeal, Father appeals case number 16002, the original custody action.
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are much farther along and will be decided before any possible remand and hearing in
this matter. Thus, Father’s avenue for relief lies in the original case, and the present
appeal is moot.
CONCLUSION
The appeal is dismissed, and this matter is remanded with costs of appeal assessed
against the appellant, Loring Justice. Execution may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
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