Patrick Richard Moorcroft v. Flora Templeton Stuart v. Natalie Talmage Moorcroft

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 17, 2014 Session
PATRICK RICHARD MOORCROFT
v.
FLORA TEMPLETON STUART
v.
NATALIE TALMAGE MOORCROFT
Appeal from the Circuit Court for Sumner County
No. 2102CV1066 C. L. Rogers, Judge
No. M2013-02295-COA-R3-CV - Filed January 30, 2015
This case began as an action for legal separation between a husband and wife. The two
quickly entered into an agreed temporary parenting plan providing for the custody of their
children. However, the children’s maternal grandmother intervened, seeking registration
and enforcement under the Tennessee Uniform Child Custody Jurisdiction and
Enforcement Act of a Kentucky grandparent visitation order. The circuit court granted
registration and enforcement of the order. The parents appealed. Because we conclude
that the grandmother was required to seek visitation under the Tennessee Grandparent
Visitation Statute, we reverse the trial court’s decision.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed and Remanded
W. N EAL M CB RAYER, J., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R., P.J., M.S., and R ICHARD H. D INKINS J., joined.
Nicholas W. Utter, Nashville, Tennessee, for the appellant/plaintiff, Patrick Richard
Moorcroft, and appellant/defendant, Natalie Talmage Moorcroft.
Jonathan A. Garner, Springfield, Tennessee, and Peter L. Ostermiller, Louisville,
Kentucky, for the appellee/intervening plaintiff, Flora Templeton Stuart.
Robert E. Cooper, Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor
General; and Mary B. Ferrara, Assistant Attorney General, Nashville, Tennessee, on
behalf of the State of Tennessee.
OPINION
I. B ACKGROUND AND P ROCEDURAL H ISTORY
The current Tennessee litigation began with a petition for legal separation filed by
one of the Appellants, Patrick Moorcroft (“Father”), against the other, Natalie Moorcroft
(“Mother”), on September 12, 2012. Claiming that Mother and Father had both been
“bona fide residents of Tennessee for more than six (6) months” prior to the filing of the
complaint, Father sought approval of a legal separation agreement and a temporary
parenting plan by the Sumner County Circuit Court. The temporary parenting plan was
intended to provide “for the adequate care, maintenance and support of the parties’ [three]
minor children.”
The parenting plan designated Father as the primary residential parent and
provided Mother visitation with the children from 11:00 p.m. to 7:00 a.m. Monday
through Saturday. After conducting a hearing on the matter, the circuit court entered an
order on September 20, 2012, granting Mother and Father a separation on the grounds of
irreconcilable differences and incorporating the parties’ temporary parenting plan into its
order.
However, on October 1, 2012, the Appellee, Flora Stuart (“Grandmother”), filed a
Motion to Intervene and a Motion to Alter, Amend, or Vacate the circuit court’s
September 20, 2012 order. Grandmother asserted an interest in the outcome of the
proceedings on the basis of a temporary grandparent visitation order, which had been
entered by a Kentucky court on September 11, 2012, the day before the filing of the
circuit court proceeding. As grounds for her motion to set aside the circuit court’s order,
Grandmother asserted that Mother and Father had “engaged in fraud, misrepresentation,
and/or other misconduct in connection with the entry of the Separation Order.”
Grandmother alleged that Mother and Father had entered into a sham separation
proceeding in an attempt to undermine visitation rights granted to her by the Circuit Court
of Warren County, Kentucky. She also claimed that the parents had attempted to deceive
the circuit court by failing to provide it with detailed information regarding the Kentucky
proceedings as required by Tennessee Code Annotated §§ 36-4-106 (2014) and 36-6-
224(a)(1)-(3) (2014).1 As an exhibit to her Motion to Intervene, Grandmother included a
1
The sole reference to the Kentucky visitation proceeding in the Complaint for Legal Separation was as
follows: “[Father] and [Mother] are aware of a pending visitation proceeding filed by the children’s maternal
grandmother in the State of Kentucky.”
1
petition for grandparent visitation she had filed with the Kentucky court. She also
included a copy of the Kentucky court order granting her temporary grandparent
visitation rights, along with various other records from the Kentucky litigation.
Father, Mother, and their children resided in Bowling Green, Kentucky, until they
moved to Whitehouse, Tennessee, sometime between August 29, 2011, and mid-
September 2011. Mother and Grandmother are both attorneys, and Mother worked as an
attorney at Grandmother’s law firm for several years. Their personal and business
relationship began to deteriorate in December 2010, and Mother left Grandmother’s firm
in March 2011. After leaving the firm, the relationship between the two became even
more acrimonious, and Mother eventually forbid Grandmother from contacting the
children.
Grandmother, in an effort to resume her relationship with her grandchildren, filed a
petition for grandparent visitation with the Kentucky court on August 30, 2011. Mother
responded by filing a motion to dismiss the Kentucky visitation proceedings, alleging that
she, Father, and the children had moved to Tennessee one day prior, on August 29, 2011,
and that the Kentucky court therefore lacked jurisdiction over the proceedings. Mother
also argued that the Kentucky court lacked personal jurisdiction over Father because he
had not yet been served.
Whether the family had moved to Tennessee before Grandmother’s August 30,
2011 petition for visitation became a hotly-contested issue in the Kentucky proceedings.
In its May 30, 2012 order denying Mother’s motion to dismiss, the Kentucky court found
that the family had not relocated to Tennessee prior to the filing of the petition for
grandparent visitation; therefore, the Kentucky court asserted jurisdiction over the matter.
The circuit court granted Grandmother’s Motion to Intervene and held in abeyance
her Motion to Alter, Amend, or Vacate its September 20, 2012 order of legal separation.
Grandmother also filed motions to register and enforce the temporary visitation order
with the circuit court on November 1, 2012.
Notice of Grandmother’s motion seeking registration of the Kentucky court’s
temporary visitation order was provided to Mother and Father on December 7, 2012,
under Tennessee Code Annotated § 36-6-229 (2014). Mother filed an answer to
Grandmother’s intervening complaint and an objection to registration of the Kentucky
order on December 21, 2012. In her answer, Mother argued that the Tennessee version of
the Uniform Child Custody Jurisdiction and Enforcement Act (“TUCCJEA”), codified at
Tennessee Code Annotated §§ 36-6-201–243 (2014), is not amenable to the registration
2
of foreign grandparent visitation orders and that registration of the Kentucky order under
the UCCJEA would be “contrary to the rights afforded Tennessee residents under Article
I, Section 8 of the Tennessee Constitution.”
Meanwhile, the Kentucky proceedings reached a conclusion, and the court issued
its final order on March 4, 2013, granting Grandmother visitation rights. The order, along
with various other filings in the record, contains numerous findings of fact and
conclusions of law related to the Kentucky proceedings that are also relevant here. For
instance, the Kentucky court found that Mother and Father had intentionally avoided
service of process in those proceedings. Mother was only served after a Warren County
Sheriff’s Deputy scaled the fire escape at her law office in order to serve her on
September 15, 2011. The Kentucky court found that Father had gone so far as to lie
about his identity to a process server in order to evade service. In spite of finally being
served on November 2, 2012, Father never appeared before the Kentucky court, and a
default judgment was eventually entered against him. Mother also failed to appear at
several hearings, despite an order from the Kentucky court compelling her attendance.
The Kentucky court also found that Mother had failed to comply with its September 11,
2012 temporary visitation order.2
In its final order, the Kentucky court noted that “[w]hen considering a petition for
grandparent visitation, the court must presume that a fit parent is making decisions that
are in the child’s best interest.” To overcome that presumption, “[t]he grandparent
petitioning for visitation must [prove] with clear and convincing evidence that
visitation . . . is in the child’s best interest.” The Kentucky court found that Mother had
admitted in her deposition that it was in the best interest of her children to continue their
relationship with Grandmother. Ultimately, the court found that “harm to the children has
resulted” through the severance of their relationship with Grandmother.
Following entry of the Kentucky court’s order, Grandmother filed a supplemental
request with the Tennessee circuit court seeking the registration and enforcement of the
final Kentucky order. On March 25, 2013, Father filed an objection to registration of the
Kentucky orders and a request for a hearing with the Tennessee circuit court. Mother
filed a similar pleading the next day.
After conducting a hearing regarding registration on September 13, 2013, the
2 Mother claimed she was unable to comply with the Kentucky grandparent visitation order because,
under the temporary parenting plan from the Tennessee proceedings, Father had custody during the hours
the children were awake.
3
circuit court issued an amended order3 granting registration of the Kentucky order, “to be
enforced with full faith and credit by this Court.” The circuit court then worked to set a
hearing on the issue of enforcement, which was ultimately held on December 17, 2013.
Mother filed a motion on November 12, 2013, objecting to the enforcement of the
Kentucky order and arguing that the TUCCJEA violated her rights under Article I,
Section 8 of the Tennessee Constitution insofar as it allowed the registration and
enforcement of a foreign grandparent visitation order without a showing of substantial
harm to the child. In response to this argument, the Tennessee Attorney General’s Office
sought leave to intervene under Rule 24.01 of the Tennessee Rules of Civil Procedure,
“for the limited purpose of defending [Mother’s] challenge to the constitutionality of
Tenn. Code Ann. §§ 36-6-237; and 36-6-205(3) and (4).” The circuit court entered two
orders on December 17, 2013, one granting the Attorney General’s motion to intervene
and the other granting Grandmother’s request for enforcement. Mother’s constitutional
challenge to the TUCCJEA was denied in an order entered by the circuit court on January
8, 2014.
Mother and Father timely appealed the trial court’s orders of registration and
enforcement. On appeal, they argue: (1) that the Kentucky court lacked subject matter
jurisdiction to enter its orders; (2) that the circuit court erred in registering and enforcing
the Kentucky order under the TUCCJEA; (3) that registration and enforcement of the
Kentucky order violates their rights under Article I, Section 8 and Article II, Section 2 of
the Tennessee Constitution; (4) that Tennessee Code Annotated § 36-6-306 (2014) is the
sole remedy for grandparent visitation in Tennessee where a grandparent has an existing
order from a foreign jurisdiction; and (5) that Tennessee Code Annotated § 36-6-
306(a)(4) requires a hearing on the issue of substantial harm to the child prior to the
enforcement of a foreign grandparent visitation order regardless of whether that order is
registered in Tennessee.
II. A NALYSIS
We review a trial court’s findings of fact de novo upon the record, with a
presumption of correctness, unless the preponderance of the evidence is to the contrary.
Tenn. R. App. P. 13(d); Lovlace v. Copley, 418 S.W.3d 1, 16 (Tenn. 2013). Visitation
decisions often hinge on determinations of witness credibility, which are afforded
3 The amended order seems to have been entered to correct a previous order granting registration and
enforcement of the Kentucky order in which Father was referred to as “David.” Other than the correction
to Father’s name, the two orders are identical.
4
considerable deference. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007);
Lovlace, 418 S.W.3d at 16. Therefore, we will not reverse on an issue that hinges on
witness credibility unless there is clear and convincing evidence “other than the oral
testimony of witnesses which contradict the trial court’s findings.” In re M.L.P., 228
S.W.3d at 143 (quoting Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn. Ct. App. 1990)).
“Review of a trial court’s determinations on issues of law, such as the existence of subject
matter jurisdiction and statutory construction, is de novo, without any presumption of
correctness.” Lovlace, 418 S.W.3d at 16; see also Button v. Waite, 208 S.W.3d 366, 369
(Tenn. 2006).
A. Jurisdiction of the Kentucky Court to Issue the Grandparent Visitation Order
Initially, Mother and Father contend that the Kentucky court lacked jurisdiction to
issue a grandparent visitation order. This amounts to a collateral attack4 on the Kentucky
court’s order, which we generally do not allow. We normally require that “a court order
[ ] be given full effect, regardless of whether it was entered in error, unless [ ] a party
obtains dissolution of the order through operation of the judicial system of review.” In re
Estate of Rinehart, 363 S.W.3d 186, 189 (Tenn. Ct. App. 2011) (internal quotations
omitted). Such an attack is permissible only where the order in question is void. Lovlace,
418 S.W.3d at 19; Rinehart, 363 S.W.3d at 190. “[A] . . . decree is void and subject to
collateral attack only where the trial court lacks general jurisdiction of the subject matter,
rules on an issue wholly outside of the pleadings, or lacks jurisdiction over the party
complaining.” Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn. 1996); see also Lovlace,
418 S.W.3d at 19; Brown v. Brown, 281 S.W.2d 492, 497 (Tenn. 1955) (concluding that
in the absence of subject matter jurisdiction, a court cannot enter a valid, enforceable
order).
Because Mother and Father’s collateral attack goes to the subject matter
4 “‘A collateral attack is defined as an attempt to avoid, defeat, or evade a judgment, or to deny its force
and effect, in some incidental proceeding not provided by law for the express purpose of attacking it.’”
Lovlace, 418 S.W.3d at 19 (quoting Andrews v. Fifth Third Bank, 228 S.W.3d 102, 107 (Tenn. Ct. App.
2007)). Furthermore:
If an action or proceeding is brought for the very purpose of impeaching or overturning a
judgment, it is a direct attack upon it. . . . On the other hand, if the action or proceeding
has an independent purpose and contemplates some other relief or result, although the
overturning of the judgment may be important, or even necessary to its success, then the
attack upon the judgment is collateral.
Gentry v. Gentry, 924 S.W.2d 678, 680 n.3 (Tenn. 1996).
5
jurisdiction of the Kentucky court,5 we may consider the issue. Tennessee Code
Annotated § 36-6-229(d)(1), the TUCCJEA provision dealing with registration of foreign
custody orders, also permits us to examine whether the foreign court issuing the custody
order had jurisdiction to do so prior to registration. Tenn. Code Ann. § 36-6-229(d)(1).
The Kentucky court found that Mother, Father, and the children still resided in
Kentucky when Grandmother filed her petition for visitation on August 30, 2011.
Nonetheless, Mother and Father argue that the Kentucky court lost jurisdiction to make a
visitation determination after they moved to the State of Tennessee, or at the very latest,
after making an “initial custody determination” through its September 11, 2012 temporary
visitation order. To decide this issue, we must turn to the Kentucky version of the
UCCJEA.
Kentucky’s version of the UCCJEA, codified at Kentucky Revised Statutes
Annotated §§ 403.800–880 (2006), is implicated where a Kentucky trial court adjudicates
a visitation issue, and the parents and children at issue all live outside of the
Commonwealth of Kentucky. See McQuade v. McQuade, No. M2010-00069-COA-R3-
CV, 2010 WL 4940386, at *5 (Tenn. Ct. App. Nov. 30, 2010) (citing Janet L. Richards,
155 Richards on Family Law § 7-3(b) (2d ed. 2004)) (applying a similar analysis to a
question of Tennessee law). The UCCJEA governs initial child custody determination
proceedings as well as proceedings to modify custody. See Ky. Rev. Stat. Ann. §§
403.822, 403.824.
Kentucky Revised Statutes Annotated § 403.822 (2006) governs jurisdiction to
make an initial child custody determination. It states, in pertinent part, that:
(1) Except as otherwise provided . . . a court of this state shall have
jurisdiction to make an initial child custody determination only if:
-
5 Father also argues that the Kentucky court lacked personal jurisdiction over him. Kentucky Revised
Statutes Annotated § 403.822(3) expressly states: “Physical presence of, or personal jurisdiction over, a
party or a child is not necessary or sufficient to make a child custody determination.” Ky. Rev. Stat. Ann.
§ 403.822(3) (2006). Because we conclude that the Kentucky court had jurisdiction to make an “initial
child custody determination” under Kentucky Revised Statutes Annotated §403.822, Father’s argument
lacks merit.
6
(a) This state is the home state6 of the child on the date of the
commencement of the proceeding, or was the home state of the child
within six (6) months before the commencement of the proceeding and
the child is absent from this state but a parent or person acting as a
parent7 continues to live in this state . . .
Ky. Rev. Stat. Ann. § 403.822(a) (footnotes added).
Because the Kentucky court’s September 11, 2012 temporary visitation order
constitutes an “initial child custody determination”8 under the Kentucky UCCJEA, we
must also determine whether the Kentucky court had jurisdiction to modify visitation
through its March 4, 2013 final visitation order. Kentucky Revised Statutes Annotated
§ 403.824 (2006) governs a court’s exclusive, continuing jurisdiction to modify a custody
order made in that court. It provides, in pertinent part:
6
“Home state” is defined, in pertinent part, as:
[T]he state in which a child lived with a parent or a person acting as a parent for at least
six (6) consecutive months immediately before the commencement of a child custody
proceeding. . . . A period of temporary absence of any of the mentioned persons is part
of the period.
Ky. Rev. Stat. Ann. § 403.800(7) (2006).
7
“Person acting as a parent” means a person, other than a parent, who:
(a) Has physical custody of the child or has had physical custody for a period of six (6)
consecutive months, including any temporary absence, within one (1) year immediately
before the commencement of a child custody proceeding; and
(b) Has been awarded legal custody by a court or claims a right to legal custody under the
law of this state.
Ky. Rev. Stat. Ann. § 403.800(13). Grandmother does not fit the definition provided by the statute;
therefore, she does not qualify as a person “acting as a parent” under the Kentucky UCCJEA.
8 An “initial determination” is defined by Kentucky statute simply as “the first child custody
determination concerning a particular child.” Ky. Rev. Stat. Ann. § 403.800(8). “Child custody
determination” is defined, in turn, as “a judgment, decree, or other order of a court providing for the legal
custody, physical custody, or visitation with respect to a child. The term includes permanent, temporary,
initial, and modification orders. The term does not include an order relating to child support or other
monetary obligation of an individual.” Ky. Rev. Stat. Ann. § 403.800(3). Therefore, the Kentucky
court’s September 11, 2012 temporary grandparent visitation order is likely an “initial child custody
determination” even though it is not a permanent or final order.
7
(1) Except as otherwise provided . . . a court of this state which has made a
child custody determination consistent with KRS 403.822 . . . has exclusive,
continuing jurisdiction over the determination until:
(a) A court of this state determines that neither the child, nor the child
and one (1) parent, nor the child and a person acting as a parent have a
significant connection with this state and that substantial evidence is no
longer available in this state concerning the child’s care, protection,
training, and personal relationships; or
(b) A court of this state or a court of another state determines that the
child, the child’s parents, and any other person acting as a parent do not
presently reside in this state.
(2) A court of this state which has made a child custody determination and
does not have exclusive, continuing jurisdiction under this section may
modify that determination only if it has jurisdiction to make an initial
determination under KRS 403.822.
Ky. Rev. Stat. Ann. § 403.824.
Under the terms of the statute, the Kentucky court lost exclusive, continuing
jurisdiction to modify its September 11, 2012 temporary visitation order when both the
Kentucky and Tennessee courts determined that neither Mother, Father, nor their children
continued to reside in Kentucky. However, under Kentucky Revised Statutes Annotated
§ 403.824(2) the Kentucky court would have retained jurisdiction to modify its temporary
order. See Ky. Rev. Stat. Ann. §§ 403.824(2), 403.822(1)(a). The petition for
grandparent visitation resulting in the final order was filed in the Kentucky court on
August 30, 2011, the date which the Kentucky court found that Mother, Father, and the
children were still living in Bowling Green, Kentucky.9 Therefore, as the children’s
home state “on the date of the commencement of the proceeding,” the Kentucky court
retained jurisdiction to enter its March 4, 2013 final order, even though it served as a
modification of the September 11, 2012 temporary order and the family moved before the
conclusion of the proceedings. Ky. Rev. Stat. Ann. § 403.822(1)(a).
This analysis is consistent with our interpretation of the TUCCJEA, as announced
in McQuade v. McQuade, No. M2010-00069-COA-R3-CV, 2010 WL 4940386 (Tenn. Ct.
App. Nov. 30, 2010). McQuade, 2010 WL 4940386, at *6-9. While McQuade is an
9 Although Mother and Father contend that the Kentucky court erred in making this finding, the record
before us is insufficient to reach a contrary finding.
8
interpretation of Tennessee law, and thus not decisive of the issue before us, it is highly
persuasive because the TUCCJEA has substantially the same language as the Kentucky
version and both are derived from the same Model Act. Compare Ky. Rev. Stat. Ann.
§ 403.822, with Tenn. Code Ann. § 36-6-216; compare Ky. Rev. Stat. Ann. § 403.824,
with Tenn. Code Ann. § 36-6-217. In McQuade we found the Tennessee trial court
lacked jurisdiction to modify a custody order where the petition for modification was
filed after the parents and child had moved away from the State of Tennessee. See
McQuade, 2010 WL 4940386, at *10. Here, however, the petition for grandparent
visitation—resulting in the permanent visitation order—was filed on August 30, 2011,
prior to Mother, Father, and the children moving to Tennessee.
Mother and Father cite Button v. Waite, 208 S.W.3d 366 (Tenn. 2006), for the
proposition that a court can lose jurisdiction over the parties if they move out-of-state
before the court renders it decision. This is a misapplication of Button. Under Button and
McQuade, new proceedings, including those for modification, may not be initiated in a
state court after a determination has been made that the parties no longer live in that state.
Button, 208 S.W.3d at 371; McQuade, 2010 WL 4940389, at *8.
Therefore, we conclude that the Kentucky court properly exercised its jurisdiction
under Kentucky Revised Statutes Annotated §§ 403.822 and 403.824 when it entered its
September 11, 2012 temporary order and its March 4, 2013 final order. Next, we
consider whether the trial court properly recognized the Kentucky grandparent visitation
orders.
B. Applicability of the TUCCJEA
We turn to our own law to determine whether the TUCCJEA allows for the
registration and enforcement of foreign grandparent visitation orders. Mother and Father
argue that the TUCCJEA does not support the registration and enforcement of foreign
grandparent visitation orders for two reasons: (1) the definition of “child custody
proceeding” in the TUCCJEA excludes proceedings seeking enforcement of grandparent
visitation orders; and (2) the Tennessee Grandparent Visitation Statute, Tennessee Code
Annotated § 36-6-306, is the sole remedy for grandparents seeking visitation under a
foreign order. These are questions of statutory interpretation subject to de novo review.
Lovlace, 418 S.W.3d at 16. We address each in turn.
When called upon to answer a question of statutory interpretation, our goal “‘is to
carry out legislative intent without broadening or restricting the statute beyond its
intended scope.’” Harris v. Haynes, 445 S.W.3d 143, 146 (Tenn. 2014) (quoting Johnson
1
v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013)). We start by looking to the language of
the statute, and if it is unambiguous, we apply its plain meaning and look no further.
Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512,
517 (Tenn. 2014); State v. Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). In doing so, we
must avoid any “‘forced or subtle construction that would limit or extend the meaning of
the language.’” Keen v. State, 398 S.W.3d 594, 610 (Tenn. 2012) (quoting Eastman
Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004)). Only when the language of a
statute is ambiguous do we turn to the broader statutory scheme, legislative history, or
other sources for clarity in meaning. Thurmond, 433 S.W.3d at 517. A statute is
ambiguous where it “‘can reasonably have more than one meaning.’” Brundage v.
Cumberland Cnty., 357 S.W.3d 361, 365 (Tenn. 2011) (quoting Lee Med., Inc. v.
Beecher, 312 S.W.3d 515, 527 (Tenn. 2010)).
The TUCCJEA, Tennessee Code Annotated §§ 36-6-201–243, was adopted in
Tennessee in 1999. 1999 Tenn. Pub. Acts 881-898 (ch. 389). Tennessee Code Annotated
§ 36-6-229 (the “registration provision”) provides that a “child-custody determination
issued by a court of another state may be registered in this state, with or without a
simultaneous request for enforcement,” provided certain requirements are met. Tenn.
Code Ann. § 36-6-229(a). A “child custody determination,” in turn, is defined in
pertinent part as an “order of a court providing for . . . visitation with respect to a child.”
Tenn. Code Ann. § 36-6-205(3). This broad language would seem to include a
grandparent visitation order, especially in light of the statutory command that we provide
the TUCCJEA a liberal interpretation promoting its underlying purposes and policies,
which are to:
(1) Avoid jurisdictional competition and conflict with courts of other states
in matters of child custody which have in the past resulted in the shifting of
children from state to state with harmful effects on their well-being;
(2) Promote cooperation with the courts of other states to the end that a
custody decree is rendered in that state which can best decide the case in the
interest of the child;
(3) Discourage the use of the interstate system for continuing controversies
over child custody;
....
2
(5) Avoid relitigation of custody decisions of other states in this state; and
(6) Facilitate the enforcement of custody decrees of other states.
Tenn. Code Ann. § 36-6-202 (2014).
The Tennessee Grandparent Visitation Statute is organized under part 3 of Title
36, Chapter 6, but it is not part of the TUCCJEA. See Tenn. Code Ann. § 36-6-306. The
Grandparent Visitation Statute was originally enacted in 1997. 1997 Tenn. Pub. Acts
918-920 (ch. 503). However, the Grandparent Visitation Statute was revised in 2000 in
light of our Supreme Court’s decision in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993),
which recognized parents’ superior parental rights, under Article I, Section 8 of the
Tennessee Constitution, over non-parents seeking custody. 2000 Tenn. Pub. Acts 2649-
2652 (ch. 891); see also Hawk, 855 S.W.2d at 577, 582. Our Supreme Court held in
Hawk that:
Article I, Section 8 of the Tennessee Constitution protects the privacy
interest of these parents in their child-rearing decisions, so long as their
decisions do not substantially endanger the welfare of their children. Absent
some harm to the child, we find that the state lacks a sufficiently compelling
justification for interfering with this fundamental right.
Hawk, 855 S.W.2d at 582.
Unlike the TUCCJEA, the Grandparent Visitation Statute specifically references
foreign grandparent visitation orders. As revised, it reads in pertinent part:
(a) Any of the following circumstances, when presented in a petition for
grandparent visitation . . . necessitates a hearing if such grandparent
visitation is opposed by the custodial parent or parents:
....
(4) The court of another state has ordered grandparent visitation;
....
(b)(1) In considering a petition for grandparent visitation, the court shall first
3
determine the presence of a danger of substantial harm to the child. Such
finding of substantial harm may be based upon cessation of the relationship
between an unmarried minor child and the child’s grandparent if the court
determines, upon proper proof, that:
(A) The child had such a significant existing relationship with the
grandparent that loss of the relationship is likely to occasion severe
emotional harm to the child;
(B) The grandparent functioned as a primary caregiver such that
cessation of the relationship could interrupt provision of the daily needs
of the child and thus occasion physical or emotional harm; or
(C) The child had a significant existing relationship with the grandparent
and loss of the relationship presents the danger of other direct and
substantial harm to the child.
Tenn. Code Ann. § 36-6-306(a)(4), (b)(1). Although Grandmother could have proceeded
under the Grandparent Visitation Statute, the court would have been required to make a
threshold determination of substantial harm to the children. Tenn. Code Ann. § 36-6-
306(b)(1).
1. The definition of “child custody proceeding” under the TUCCJEA
Mother and Father argue that a foreign grandparent visitation proceeding is
excluded from the TUCCJEA’s definition of a “child custody proceeding.” Therefore, no
“child custody determination” may arise from such proceedings. They rely on the plain
language of Tennessee Code Annotated § 36-6-205(4) (2014), which defines a “child
custody proceeding” as:
[A] proceeding in which legal custody, physical custody, or visitation with
respect to a child is in issue. “Child custody proceeding” includes a
proceeding for divorce, separation, neglect, abuse, dependency,
guardianship, paternity, termination of parental rights, and protection from
domestic violence, in which the issue may appear. “Child custody
proceeding” does not include a proceeding involving juvenile delinquency,
contractual emancipation, or enforcement under part 3 of this chapter.
4
Tenn. Code Ann. § 36-6-205(4) (emphasis added). As noted above, part 3 of Chapter 6
includes the Grandparent Visitation Statute, Tennessee Code Annotated § 36-6-306.
Therefore, on its face, the definition of “child custody proceeding” under the TUCCJEA
would seem to exclude grandparent visitation proceedings.
In response, Grandmother argues that the TUCCJEA requires Tennessee courts to
recognize and enforce a “child custody determination” of another state. Tenn. Code Ann.
§ 36-6-229(a). The definition of “child custody determination” includes an order for
“visitation with respect to a child.” Tenn. Code Ann. at § 36-6-205(3). This apparent
contradiction in the statute creates an ambiguity that we must resolve.
In seeking resolution of this ambiguity, we turn to the Model Act from which the
TUCCJEA is derived. Our Legislature has directed us to seek guidance from the Model
Act and its commentary. Tenn. Code Ann. § 36-6-203 (2014). The language of the
Model Act defining “child custody proceeding” is almost identical to the TUCCJEA:
[A] proceeding in which legal custody, physical custody, or visitation with
respect to a child is an issue. The term includes a proceeding for divorce,
separation, neglect, abuse, dependency, guardianship, paternity, termination
of parental rights, and protection from domestic violence, in which the issue
may appear. The term does not include a proceeding involving juvenile
delinquency, contractual emancipation, or enforcement under [Article] 3.
Unif. Child Custody Jurisdiction & Enforcement Act § 102(4) (1997) [hereinafter
UCCJEA].
Although the statutes contain nearly identical language, they cross-reference
entirely different substantive provisions. Compare UCCJEA §§ 301–317; with Tenn.
Code Ann. §§ 36-6-301–308. Article 3 of the Model Act covers proceedings for
enforcement under the Hague Convention, UCCJEA § 302, registration of child-custody
determinations from other states, id. § 305, enforcement of registered determinations, id.
§ 306, and various other subjects, but it makes no mention of grandparent visitation
proceedings. See id. §§ 301–317. The TUCCJEA has no P+art 3. Part 3 of Title 36,
Chapter 6 of the Tennessee Code Annotated, which the TUCCJEA definition of “child
custody proceeding” seemingly references, contains provisions governing grandparent
rights, Tenn. Code Ann. § 36-6-302, stepparent visitation, Tenn. Code Ann. § 36-6-303,
grandparent visitation, Tenn. Code Ann. § 36-6-306, and other visitation matters. See
Tenn. Code Ann. §§ 36-6-301–308. The TUCCJEA does have substantially similar
provisions as Article 3 of the Model Act, but they are located at Tennessee Code
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Annotated §§ 36-6-226-241.
Although we normally interpret the words of a statute by their plain language, it is
well-settled that we will disregard an apparent mistake. Chickasaw Nation v. United
States, 534 U.S. 84, 94 (2001); State v. Temple, 220 S.W. 1084, 1086 (Tenn. 1920). In
such an instance, we may refer to other parts of the statute to seek clarity in meaning.
Temple, 220 S.W. at 1086. This rule is especially pertinent when dealing with a
numerical cross-reference in a statute. See Chickasaw, 534 U.S. at 94.
We conclude that our Legislature did not intend to exclude grandparent visitation
proceedings from the TUCCJEA’s definition of “child custody proceeding.” Even though
the plain language of the TUCCJEA provision discusses “enforcement under part 3 of this
chapter,” a closer review reveals that the statute is meant to reference Tennessee Code
Annotated §§ 36-6-226–241. This conclusion is supported by the official commentary to
the TUCCJEA and the Model Act, both of which contain identical language explaining
the exclusion of Article 3 enforcement proceedings from the definition of “child custody
proceeding”:
The definition of “child-custody proceeding” has been expanded
from the comparable definition in the UCCJA. . . . Cases involving the
Hague Convention on the Civil Aspects of International Child Abduction
have not been included at this point because custody of the child is not
determined in a proceeding under the International Child Abductions
Remedies Act. Those proceedings are specially included in the Article 3
enforcement process.
Tenn. Code Ann. § 36-6-205 cmt.; UCCJEA § 102 cmt. From this commentary, it
becomes apparent that our Legislature meant to exclude proceedings conducted under
Tennessee Code Annotated §§ 36-6-221–241 from the definition of “child custody
proceeding,” not grandparent visitation issues under Tennessee Code Annotated § 36-6-
306.
2. The TUCCJEA and Grandparent Visitation Statute
Nevertheless, we still must determine whether a foreign grandparent visitation
order may be registered and enforced under the TUCCJEA registration provision,
Tennessee Code Annotated § 36-6-229, or if visitation must be sought under the
Tennessee Grandparent Visitation Statute, Tennessee Code Annotated § 36-6-306. To
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answer this question, we turn to canons of statutory construction. These canons, although
helpful, must always be tested against other interpretive tools at the court’s disposal. In
re Estate of Tanner, 295 S.W.3d 610, 624 n.13 (Tenn. 2009). The canons are not
mandatory, and they “‘need not be conclusive.’” Chickasaw, 534 U.S. at 94 (quoting
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001)). Rather, they are designed
to help us determine the Legislature’s intent in adopting particular statutory language. Id.Two canons support a construction of the TUCCJEA that would allow for
registration and enforcement of foreign grandparent visitation orders. It is well-settled
that we may turn to a statute’s preamble and policy statements for guidance when seeking
to resolve an ambiguity. See Hyatt v. Taylor, 788 S.W.2d 554, 556 (Tenn. 1990); Harrell
v. Hamblen Cnty. Quarterly Court, 526 S.W.2d 505, 508 (Tenn. Ct. App. 1975).
Tennessee Code Annotated § 36-6-202 directs us to broadly and liberally construe the
TUCCJEA in light of its purposes which include: (1) avoiding jurisdictional competition;
(2) discouraging the misuse of our interstate system; (3) avoiding relitigation of custody
determinations made by other states; and (4) facilitating the enforcement of other states’
custody decrees. Tenn. Code Ann. § 36-6-202. Each of these purposes would seem to
encourage the inclusion of foreign grandparent visitation orders within the ambit of the
TUCCJEA.
The statutory definition of “child custody determination” also supports such a
construction. Tenn. Code Ann. § 36-6-205(4). We turn to a statute’s definitions section
when seeking to ascertain the meaning of a particular word or phrase. See Fox Std. Oil
Co. of New Jersey, 294 U.S. 87, 96 (1935); Dunn v. Archer, 265 S.W. 678, 679 (Tenn.
1924). Under the TUCCJEA, a “child custody determination” includes a court order for
“visitation with respect to a child.” Tenn. Code Ann. § 36-6-205(4). This definition is
certainly broad enough to include a foreign grandparent visitation order.
However, three countervailing canons of statutory construction convince us that
the Legislature intended to require grandparents seeking visitation rights in Tennessee to
utilize the Grandparent Visitation Statute rather than the TUCCJEA registration
provision. First, where a conflict is present, “a more specific statutory provision takes
precedence over a more general provision.” Lovlace, 418 S.W.3d at 20. The TUCCJEA
registration provision applies to an order providing for “visitation with respect to a child,”
a broader and more general reference than the Grandparent Visitation Statute’s specific
reference to where “[t]he court of another state has ordered grandparent visitation.” See
Tenn. Code Ann. §§ 36-6-205(3), -229, -306. Because the Grandparent Visitation Statute
is specifically applicable to instances of grandparent visitation, it overrides the TUCCJEA
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registration provision where the two conflict.
Second, we assume the Legislature is aware of its prior enactments; therefore, as a
general rule, a more recent enactment will take precedence over a prior one to the extent
of any inconsistency between the two. See Hayes v. Gibson Co., 288 S.W.3d 334, 337
(Tenn. 2009); see also Lovlace, 418 S.W.3d at 20; Davis v. State, 313 S.W.3d 751, 762
(Tenn. 2010). However, “new statutes change pre-existing laws only to the extent
expressly declared,” and a statute “not repealing directly or by implication any previous
law, is cumulative to such law.” Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013).
Repeal by implication is disfavored. Id. Although the Grandparent Visitation Statute was
originally enacted in 1997, it was updated to comply with State constitutional
requirements in 2000 and, therefore, is the more recently adopted statute. 2000 Tenn.
Pub. Acts 2649-2652 (ch. 891). This lends further weight to application of the
Grandparent Visitation Statute where the two conflict. Furthermore, as the TUCCJEA
has never been held to apply to foreign grandparent visitation orders in Tennessee, a
holding that the Grandparent Visitation Statute precludes its application to such orders
would not constitute an implied repeal.
Finally, when faced with two equally plausible interpretations, one of which poses
constitutional concerns, the canon of constitutional avoidance directs us to adopt the other
interpretation. Clark v. Martinez, 543 U.S. 371, 380-81 (2005). Importantly, we do not
apply this canon to adjudicate constitutional issues that were deemed waived by the
circuit court. See id. at 381. Rather, the canon permits us to avoid constitutional
questions by “resting on the reasonable presumption that [the Legislature] did not intend
the alternative which raises serious constitutional doubts.” Id.As noted above, Article I, Section 8 of the Tennessee Constitution requires that a
finding of substantial endangerment be made before a non-parent can overcome the
presumption of superior parental rights. Hawk, 855 S.W.2d at 582. Application of the
TUCCJEA registration provision to grandparent visitation presents serious constitutional
concerns. Tennessee Code Annotated § 36-6-229 does not provide adequate
constitutional protection to our citizens—it does not require a court to find a substantial
risk of harm to the child prior to registration and enforcement of a foreign grandparent
visitation order. Tenn. Code Ann. § 36-6-229. It also does not require the foreign court
to have made such a finding. Id. The Grandparent Visitation Statute, however, has been
revised to explicitly require that a Tennessee court determine whether there is a risk of
substantial harm to the child. Tenn. Code Ann. § 36-6-306(b)(1). Only then may the
court proceed to consider whether grandparent visitation is in the child’s best interest.
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Tenn. Code Ann. § 36-6-306(c).
Because registration of a foreign grandparent visitation order that does not comply
with our State’s constitutional guarantees would present serious concerns, we conclude
that the TUCCJEA registration provision does not apply to foreign grandparent visitation
orders. We are aware of three states that have arrived at the opposite conclusion, at least
implicitly, by applying the UCCJEA to grandparent visitation orders. See Daniels v.
Barnes, 658 S.E.2d 472 (Ga. Ct. App. 2008); G.P. v. A.A.K., 841 So. 2d 1252 (Ala. Civ.
App. 2002); Schumacher v. Steen, No. 294593, 2010 WL 3389740 (Mich. Ct. App. Aug.
26, 2010). On the other hand, two other states—Montana and Louisiana—have both
concluded that the UCCJEA does not apply to grandparent visitation orders. See Burst v.
Schmolke, 62 So. 3d 829, 836 (La. Ct. App. 2011) (finding that in order for grandparents
to take advantage of the Louisiana UCCJEA, they must be persons “acting as a parent”
under the Act); Stewart v. Evans, 136 P.3d 524 (Mont. 2006).
We find the decisions applying the UCCJEA to foreign grandparent visitation
proceedings unpersuasive. In Schumacher v. Steen, No. 294593, 2010 WL 3389740(Mich. Ct. App. Aug. 26, 2010), the Michigan Court of Appeals found that the UCCJEA
applied to grandparent visitation proceedings based on the broad language defining “child
custody determination” and “child custody proceeding” in its version of the UCCJEA.
Schumacher, 2010 WL 3389740, at *5. While the plain language of the TUCCJEA
would also support such a reading, it would fail to take into account the constitutional
protections offered by Article I, Section 8 of the Tennessee Constitution to Tennessee
citizens. Daniels v. Barnes, 658 S.E.2d 472 (Ga. Ct. App. 2008), and G.P. v. A.A.K., 841
So. 2d 1251 (Ala. Civ. App. 2002), are likewise unpersuasive. In neither case did the
court consider whether a higher presumption of parental rights under the state’s
constitution prevented the court from interpreting the statute based solely on its plain
language. Daniels, 658 S.E.2d at 474-475; G.P., 841 So. 2d at 1255. These
constitutional concerns were not addressed in those cases, and so we do not rely on them
here.
Furthermore, our review of these states’ grandparent visitation statutes reveals that
they do not explicitly apply to a situation where a grandparent has a foreign visitation
order, unlike Tennessee’s statute. Compare Tenn. Code Ann. § 36-6-306(a)(4), with Ala.
Code § 30-3-4.1 (2011) (declared unconstitutional by L.T. v. J.D., 109 So. 3d 652 (Ala.
Civ. App. 2012)), Ga. Code Ann. § 19-7-3 (2009), and Mich. Comp. Laws Ann. §
722.27b (2011). This lack of an alternative avenue for recognizing grandparent visitation
rights is another reason for disregarding other states’ interpretations of their versions of
9
the UCCJEA.
Because the circuit court erred in utilizing the TUCCJEA to register and enforce a
foreign grandparent visitation order, it is unnecessary for us to address the remaining
issues raised by Mother and Father.
III. C ONCLUSION
The trial court’s orders registering and enforcing the Kentucky orders is reversed
and remanded for further proceedings consistent with this opinion. Costs of this appeal
shall be taxed to Appellee, Flora Stuart, for which execution shall issue, if necessary.
_________________________________
W. NEAL McBRAYER, JUDGE
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