In Re John B.

09/17/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 4, 2019 Session
IN RE JOHN B.1
Appeal from the Juvenile Court for Macon County
No. 2012-JV-10 Ken Witcher, Judge
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No. M2018-01589-COA-R3-JV
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This is an appeal in a proceeding to modify a residential parenting plan, established in
January 2013. The initial petition to modify the plan was filed by the Father,
accompanied by his proposed plan, in October 2016; Mother answered the petition in
January 2017 and a hearing was set for two non-consecutive days in July 2018. During
the hiatus in the hearing, the Mother filed a counter-petition and a proposed parenting
time plan. The hearing resumed solely on Father’s plan and the court entered an order
finding a material change of circumstance and reducing Father’s parenting time; Father
appeals. Because the court has not yet resolved the claims between the parties, we
dismiss the appeal for lack of a final judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated;
Appeal Dismissed and Case Remanded
RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.
Bert W. McCarter, Murfreesboro, Tennessee, for the appellant, Scott H. B.
Lisa C. Cothron, Lafayette, Tennessee, for the appellee, Nedra D. P.
MEMORANDUM OPINION2
1
This Court has a policy of protecting the identity of children by initializing the last names of the parties.
2
Rule 10 of the Rules of the Court of Appeals 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opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and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.
This appeal arises out of proceedings related to a petition to modify a parenting
plan filed by Scott B., father of John B., and a counter-petition filed by Nedra P., John
B.’s mother. Father’s petition, in which he alleged facts which he contended showed a
material change of circumstance supporting a modification in the parenting plan which
had been entered on January 31, 2013, was filed on October 18, 2016; Father filed a
proposed parenting plan with the petition which increased his residential parenting time
and designated him primary residential parent. Mother answered the petition on January
17, 2017, denying that Father was entitled to relief; Mother did not include a proposed
parenting plan with her answer. In due course, a hearing on Father’s petition was set for
July 9 and 16, 2018.
A hearing on Father’s petition began on July 9; in her opening presentation,
Mother’s counsel stated: “In sum, we’re asking this Court not to increase [Father’s]
parenting time, nor his decision-making authority, but actually to limit it.” At the end of
the first day, the court asked both counsel:
One thing that I want some input on from both of you — and this may be
something you can do between now and next Monday — [Mother’s
counsel] is apparently asking that the Court modify the parenting plan in a
way that she wants it to be modified. Now, how can I do that? You haven’t
filed any kind of action asking the Court to modify. Can the Court do that?
Mother’s counsel responded: “Well, Your Honor, they asked to modify custody, not real
clearly, and/or the parenting schedule, and we’re essentially saying it should not be
modified that way, it should be modified this way. We have not filed a counter-
complaint, Your Honor.”
On July 12, Mother filed a Counter-Petition, in which she sought to limit Father’s
residential parenting time to “either supervised parenting time during the day on alternate
weekends, or in the alternative, limited to 48 hour periods, with the exception of the week
after Christmas, with [the] requirement that Father immediately begin, and successfully
complete, a forensic psychological evaluation and recommended treatment . . .” Mother
attached a proposed parenting plan to her petition, which designated her as primary
residential parent, gave her 303 days of parenting time and Father 62 days, and placed all
decision-making authority with her.
When the hearing resumed on July 16, the court engaged in the following colloquy
with counsel:
[Mother’s Counsel]: Your Honor, as a preliminary matter, when we
were here last Monday you asked about -- essentially, about whether or not
we should have filed a counter-complaint, and I think that’s a very
interesting question, and I actually think the answer is no, but because I
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don’t like to take risks, I filed a counter-complaint on Thursday, together
with mother’s proposed parenting plan.
Now, I have advised Mr. McCarter that because of it being late filed,
I would have no objection if he wants to have a continuance so that he has
time to review the counter-petition with his client more carefully and be
prepared, that he might not want to close his proof.
***
THE COURT: Mr. McCarter, do you wish to respond?
[Fathers’ counsel]: Judge, we’re here on my petition, the petition
that’s been pending for some time now. This case has been set for a
significant period of time. Obviously, I can’t control what Ms. Cothron and
her client do. If they want to file their own petition – and it appears they
want to further limit my client’s parenting time – that’s their business and
that just needs to be set at a different date after the appropriate discovery
and things of that nature is taken.
So, obviously, I don’t want a continuance. I’ve got Ms. Patterson
here today to testify. Ms. Green is here to testify. Mr. Bowman is here, I
think, to testify. We’re here geared up and ready to tee it up, I’m ready to
tee it up, so with respect to Ms. Cothron suggesting that I may want a
continuance, I don’t want a continuance with respect to my petition. It’s
here. We’re here. We’re ready to go.
***
So with respect to their counter-petition, I get 30 days to answer that.
If they want to proceed with that, we just have to go through the proper
protocol, in my mind, to get that done, but as far as I’m concerned, we’re
here ready to go. We’ve got all of our stuff laid out. I’m ready to move
forward with our case today, Judge.
[Mother’s counsel]: . . . We are here about the best interest of John,
and granted, the counter-complaint, if necessary, should have been filed
before, so I’m not wishing to take any advantage of Mr. McCarter or his
client. I don’t think there are any surprises in this case that’s been going on
since 2016, but for the sake of judicial economy, rather than having to
come back on a later date on our counter-complaint, that was my
suggestion, and certainly I was not suggesting that we not take testimony
from the witnesses that have been subpoenaed here.
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***
THE COURT: Of course, Mr. McCarter, you’ve stated that you
don’t agree that we’re proceeding on the counterclaim at this point in time
because you just received it and hadn’t had time to answer it, so we’re just
proceeding on your case as far as you’re concerned. Is that correct?
[Fathers’ counsel]: Yes, Judge. I just got the counter-petition and I
got, along with that, about a 21-page brief with that today, so as far as I’m
concerned I would respectfully suggest to the Court we’re just here on my
petition on behalf of [Father].
THE COURT: Well, that’s what I’m going to do. We will proceed
with the hearing that we started the other day on the original petition that
was filed in the case by Mr. McCarter.
On August 6, the court entered findings of fact and conclusions of law and the judgment
from which the appeal has been taken; the judgment recites that the cause was heard on
Father’s petition and Mother’s answer.
A party is entitled to an appeal as of right only after the trial court has entered a
final judgment. Tenn. R. App. P. 3(a); In re Estate of Henderson, 121 S.W.3d 643, 645
(Tenn. 2003); King v. Spain, No. M2006-02178-COA-R3-CV, 2007 WL 3202757 at *8
(Tenn. Ct. App. Oct. 31, 2007). A final judgment is a judgment that resolves all the
claims between all the parties, “leaving nothing else for the trial court to do.” State ex rel.
McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App. 1997). An order that
adjudicates fewer than all the claims between all the parties is subject to revision at any
time before the entry of a final judgment and is not appealable as of right. Tenn. R. App.
P. 3(a); In re Estate of Henderson, 121 S.W.3d at 645. The trial court may direct the
entry of a final judgment as to fewer than all of the claims or parties, but only upon an
express determination that there is no just reason for delay and an express direction for
the entry of judgment. Tenn. R. Civ. P. 54.02.
On the state of the record presented, Mother’s Counter-Petition has not yet been
ruled upon or otherwise disposed of; her claims remain outstanding. Thus, the August 6,
2018 order is not a final judgment for purposes of appeal, unless and until the trial court
directs entry of a final judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil
Procedure.
The appeal is hereby dismissed without prejudice to the filing of a new appeal
once a final judgment has been entered. The case is remanded to the trial court for
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further proceedings consistent with this opinion. Costs of the appeal are taxed to
Appellant.
PER CURIAM
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