Dillon Brooks v. Heather Avery Andrews

12/27/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 26, 2021 Session
DILLON BROOKS v. HEATHER AVERY ANDREWS
Appeal from the Chancery Court for Shelby County
No. CH-20-1527-1 JoeDae L. Jenkins, Chancellor
___________________________________
No. W2021-00106-COA-R10-JV
___________________________________
This extraordinary appeal arises from an alleged biological father’s complaint for
“emergency custody,” injunctive relief, and to set child support, filed in the Shelby County
Chancery Court. The chancery court immediately entered a restraining order requiring that
the child either remain in Shelby County or be returned to Shelby County in the event she
had been removed. It also entered a temporary injunction requiring the mother to place the
child in the custody of the alleged father pending further orders. Counsel for the mother
filed a notice of limited appearance and a motion to dismiss the complaint for lack of
subject matter jurisdiction, lack of personal jurisdiction, insufficiency of service of process,
and failure to state a claim. The mother submitted affidavits and other proof in support of
her position that she and the child were residents of California and had not been present in
the State of Tennessee when the complaint was filed or since, so there was no basis for
asserting temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction
and Enforcement Act, Tenn. Code Ann. § 36-6-219. She also argued that the alleged father
had no right to custody of the child because he had never obtained an order establishing
paternity. At a hearing, the chancellor orally denied the mother’s motion to dismiss. The
mother filed an application for an extraordinary appeal to this Court pursuant to Rule 10 of
the Tennessee Rules of Appellate Procedure and requested a stay of the trial court
proceedings. The alleged father then filed an amended complaint. On the same date, this
Court stayed the proceedings in the trial court and directed the mother to obtain the entry
of a written order memorializing the chancellor’s oral ruling. Thereafter, the chancery
court entered a lengthy written order denying the mother’s motion to dismiss on all grounds
asserted. This Court granted the mother’s application for an extraordinary appeal and
framed the single issue as whether the alleged father had standing to file the complaint for
emergency custody, for injunctive relief, and to set child support in Shelby County
Chancery Court. We now vacate the trial court’s orders exercising temporary emergency
jurisdiction, reverse in part the order denying the motion to dismiss, and remand for further
proceedings.
Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Chancery Court
Vacated in Part, Reversed in Part, and Remanded
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
Joseph W. Smith, R. Miles Mason, and William G. Buie, IV, Germantown, Tennessee, for
the appellant, Heather Andrews.
Holly J. Renken and Lucie Brackin, Memphis, Tennessee, for the appellee, Dillon Brooks.
OPINION
I. FACTS & PROCEDURAL HISTORY
Dillon Brooks (“Mr. Brooks”) is a professional basketball player for the Memphis
Grizzlies. He has a daughter who was born out of wedlock in October 2019 to Heather
Andrews (“Mother”). Mother travels frequently and lives what the trial court aptly
described as a “highly mobile lifestyle.” According to Mr. Brooks, he first met Mother in
Las Vegas in 2018, but she was living in Dallas at the time. Mr. Brooks claims that Mother
initially flew from Dallas to Memphis to visit him, but after she became pregnant with their
child, he believed that she had moved to Nevada where her parents lived. However, Mother
produced a lease agreement during the course of this litigation indicating that she had
leased a home in Los Angeles for a term of two years beginning on February 1, 2019, and
ending on February 1, 2021.
A “prenatal paternity test” indicated a 99.9 percent probability that Mr. Brooks was
the biological father of Mother’s child. Mother gave birth to the subject child in Las Vegas
in October 2019. On December 30, 2019, when the child was two months old, Mr. Brooks
filed a complaint for custody in Nevada. On February 14, 2020, Mother filed a complaint
for custody and child support in California.
Despite the ongoing litigation, in July 2020, Mother and the child began making
trips to Memphis to spend time with Mr. Brooks. The parties dispute whether Mother
intended to move to Memphis during this timeframe. Mr. Brooks and Mother jointly
signed a lease on a condo in Memphis. The parties stipulated to dismissal of Mr. Brooks’
Nevada lawsuit in October 2020. Mother dismissed her California lawsuit on November
19, 2020. The parties’ relationship deteriorated quickly thereafter. Mr. Brooks spent a few
days with the child at the condo in Memphis for the Thanksgiving holiday. However, text
messages between Mr. Brooks and Mother from early December indicate that the parties
were in a heated argument over the child. On December 4, Mother sent a text message
warning Mr. Brooks not to threaten her or the child and insisting that her child would never
be taken from her.
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On December 10, 2020, Mr. Brooks filed a “Complaint for Emergency Custody, for
Injunctive Relief, and to set Child Support” in the chancery court of Shelby County,
Tennessee. At the outset, Mr. Brooks alleged that he was a resident of Shelby County. Mr.
Brooks’ complaint acknowledged that the child, now thirteen months old, was born in Las
Vegas in October 2019 and that Mother claims to have lived in California with the child
from December 2019 through June 2020. However, Mr. Brooks alleged, “[u]pon
information and belief,” that Mother and the child had resided in Shelby County since July
2020. Mr. Brooks mentioned the previous litigation in Nevada and California but stated
that the parties had disputed which state had jurisdiction over the child and that no custody
order had been entered in those cases. Mr. Brooks asked the chancery court to issue an
emergency custody order pursuant to Tennessee Code Annotated section 36-6-219 of the
Uniform Child Custody Jurisdiction and Enforcement Act, (“UCCJEA”), which provides,
in pertinent part:
A court of this state has temporary emergency jurisdiction if the child is
present in this state and the child has been abandoned or it is necessary in an
emergency to protect the child because the child, or a sibling or parent of the
child, is subjected to or threatened with mistreatment or abuse.
Tenn. Code Ann. § 36-6-219(a) (emphasis added).1 Regarding the child’s presence in the
state, Mr. Brooks’ complaint conceded that “Mother has possibly removed the child from
Shelby County Tennessee,” but he claimed that Mother had advised him that the child was
in Memphis as recently as December 8. As for the allegation of mistreatment or abuse,
Mr. Brooks alleged that Mother had repeatedly exposed the child to Covid-19 through her
frequent travel and recently exhibited “unstable behaviors.” Mr. Brooks alleged that
Mother had been traveling all over the United States and Canada with the child since the
Covid-19 pandemic began in March 2020, flying by airplane with the child at least twelve
times but “likely significantly more.” Mr. Brooks alleged that the child had contracted
Covid-19 “while in the care of Mother” two months earlier, on or about October 10, 2020.
He alleged that the child had also contracted a staph infection “while in the care of the
Mother.” Mr. Brooks asserted that the parties’ relationship began to deteriorate shortly
after they agreed to dismiss the other litigation, and Mother had been incessantly contacting
him from various telephone numbers and relentlessly posting disparaging comments about
him on social media. He alleged that Mother was attempting to harm his career and cause
him to lose his employment. Mr. Brooks claimed that he was currently providing financial
support for the child but that his career would suffer if Mother continued her behavior. He
1
According to the statute’s Official Comment, it provides for “an extraordinary jurisdiction
reserved for extraordinary circumstances.” Tenn. Code Ann. § 36-6-219 Official Cmt. Under this section,
“a court may take jurisdiction to protect the child even though it can claim neither home State nor significant
connection jurisdiction.” Id. However, “a custody determination made under the emergency jurisdiction
provisions of this section is a temporary order” and intended “to protect the child until the State that has
jurisdiction under Sections 201-203 enters an order.” Id.-3-
also alleged that Mother had recently threatened him, via the December 4 text message, if
he attempted to take the child from her. He attached various messages and a social media
post and asserted that Mother’s “bizarre and reckless behavior” warranted grave concern
about her mental state. Thus, Mr. Brooks alleged that it was necessary for the court to
exercise temporary emergency jurisdiction to protect the child.
Mr. Brooks asked the court to immediately enjoin Mother from removing the child
from Shelby County, or, if she had already done so, to order the immediate return of the
child to Shelby County. He also sought an immediate injunction preventing Mother from
disparaging him on social media or contacting his employer. Mr. Brooks also requested
“temporary emergency custody” of the child pending further orders. Mr. Brooks’
complaint acknowledged that he was not listed on the child’s birth certificate and that there
was no order establishing paternity of the child. However, Mr. Brooks alleged that the
child was “conclusively” his child pursuant to the prenatal paternity test, which he attached
to his complaint. Mr. Brooks described himself as “an active parent when he is not in-
season with the NBA or training.” He alleged that he had most recently spent time with
the child from November 22 to November 26, 2020.
Additionally, Mr. Brooks alleged that the chancery court had jurisdiction to set child
support consistent with Tennessee’s child support guidelines pursuant to Tennessee Code
Annotated section 36-5-2201(a)(3), of the Uniform Interstate Family Support Act. Mr.
Brooks attached to his complaint an affidavit from his attorney, which stated,
1. The current location of [Mother] is unknown, although [Mr. Brooks]
believes her to currently be in Shelby County, Tennessee.
2. No attempt at notice has been made to [Mother], as [Mr. Brooks] fears
that [she] will leave the jurisdiction of this Court with the minor child should
she know in advance about the filing of the herein action.
Mr. Brooks also attached other exhibits to his complaint, including documents regarding
the litigation in Nevada and California and the parties’ lease on the Memphis condo.
On the same day Mr. Brooks’ complaint was filed, a chancellor, sitting by
interchange, signed a fiat directing the issuance of a temporary restraining order as
requested in the complaint. It provided that the child must remain in Shelby County or be
returned to Shelby County in the event that she had already been removed. It further
restrained Mother from making disparaging social media posts about Mr. Brooks or
publicly disparaging him or contacting his employer in any way. Although Mr. Brooks’
request for temporary emergency custody was not immediately granted, a hearing was
scheduled for one week later, on December 18, for Mother to appear and show cause why
Mr. Brooks should not be granted the relief he sought.
A Zoom hearing was held on December 18, but only Mr. Brooks and his attorney
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appeared and participated. Mr. Brooks’ counsel explained that in the days after the filing
of the December 10 complaint, they had attempted to obtain service of process on Mother
at the Memphis condo several times to no avail. Mr. Brooks’ counsel submitted her own
affidavit, stating that service had been attempted at the Memphis condo on December 10
and December 11, but it was not completed. Mr. Brooks’ counsel said that they had also
attempted service at the home of Mother’s parents in Nevada on December 12, but after
the child’s grandmother refused to accept service, it was left on the doorstep on December
14. Counsel described attempts to contact Mother via social media, email, and text
message, and she suggested that Mother knew about the litigation as reflected by her recent
social media posts. Counsel maintained that an emergency custody order was necessary to
protect the child because of Mr. Brooks’ concerns about Mother’s mental state and the fact
that Mother continued flying by airplane with the child even though she had contracted
Covid-19 two months earlier.
Mr. Brooks testified briefly during the Zoom hearing. He testified about the
paternity test establishing that he is the child’s biological Mr. Brooks. He said he had last
spent time with the child for a few days at the end of November at the condo in Memphis.
Mr. Brooks submitted a photograph of Mother’s vehicle (with a Nevada license plate),
which remained parked at the Memphis condo. However, Mr. Brooks said Mother had not
responded to his text messages about the hearing. Mr. Brooks testified that Mother had
used about thirty different telephone numbers to contact him over the last few months, and
he had attempted to contact her about the hearing using two of those numbers, although
one message was admittedly undelivered. Mr. Brooks said that Mother had listed a couch
for sale on “Facebook Marketplace” on December 14, with the location shown as Memphis.
However, he said she had also posted on social media a photograph of herself and the child
on a private plane with the caption “Catch Me If You Can.”
Mr. Brooks testified that Mother had flown on airplanes with the child at least fifteen
times in the months since the pandemic began and that the child had already contracted
Covid-19, although he did not testify as to how the child was affected by the virus or
whether she had any lingering effects two months later. He said the child had also
contracted a staph infection on her toe “when she was staying in LA.” He suggested that
the child contracted the infection after Mother had her carpets cleaned and failed to wait
long enough afterward before the child crawled and walked on them. He also described
Mother’s disparaging social media posts and attempts to interfere with his employment.
Mr. Brooks said he had concerns about Mother’s mental health and how it might impact
his daughter. Numerous exhibits were admitted into evidence. At the conclusion of the
testimony, the chancellor announced that he would be entering an order granting the
request for a temporary injunction and requiring Mother to bring the child back to
Memphis.
On December 22, 2020, the chancery court entered an “Order Issuing Injunctive
Relief.” The chancery court found sufficient evidence to suggest the child may be in
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harm’s way and in danger of irreparable harm if left in Mother’s custody. Thus, the
chancery court entered a temporary injunction placing the child in Mr. Brooks’ custody.
Mother was ordered to return the child to Shelby County. She was also enjoined from
making disparaging comments about Mr. Brooks in any way or contacting his employer.
Finally, the order stated that an attachment pro corpus would issue for the body of the child,
such that any official legal authority in the jurisdiction where the child was located and
with an opportunity to take custody of the child should do so and return the child to Mr.
Brooks.
In January, Mr. Brooks filed a motion for default judgment and a motion to compel
disclosure of the location of Mother and the child. Days later, counsel for Mother filed a
notice of limited appearance, indicating that he would be appearing for the sole purpose of
seeking dismissal of Mr. Brooks’ complaint. On January 28, Mother filed a motion to
dismiss the complaint pursuant to Tennessee Rule of Civil Procedure 12.02(1), (2), (5), and
(6), asserting lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency
of service of process, and failure to state a claim upon which relief can be granted. Mother
pointed out that Mr. Brooks’ complaint requested determinations of custody and child
support for a child born out of wedlock, yet he admitted that he had not obtained an order
establishing paternity and that his name is not listed on the birth certificate. Mother argued
that Mr. Brooks could not simply attach a DNA test to his complaint and establish himself
as the father or vest himself with authority to seek custody and establish child support. In
the absence of any legal establishment of Mr. Brooks’ paternity, Mother argued that he was
required to bring this action in a court with subject matter jurisdiction to establish
parentage. Mother argued that the chancery court of Shelby County lacks subject matter
jurisdiction to determine parentage according to Tennessee Code Annotated section 36-2-
307.2 Because Mr. Brooks had not established any right to custody of the child under
Tennessee law, Mother argued that his complaint should be dismissed for failure to state a
2
The statute provides, in pertinent part:
The juvenile court or any trial court with general jurisdiction shall have jurisdiction of an
action brought under this chapter [regarding parentage]; provided, that, in any county
having a population not less than eight hundred twenty-five thousand (825,000) nor more
than eight hundred thirty thousand (830,000), according to the 1990 federal census or any
subsequent federal census, only the juvenile court shall have jurisdiction of an action
brought under this chapter.
Tenn. Code Ann. § 36-2-307(a)(1). See also Tenn. Op. Att’y Gen. No. 10-91 (Aug. 9, 2010) (“As provided
in Tenn. Code Ann. § 36-2-307(a)(1), in a county that has a population between 825,000 and 830,000
according to the 1990 or subsequent federal census, only the juvenile court shall have jurisdiction of an
action brought under Chapter 2, Title 36. As Shelby County fell within this population bracket according
to the 1990 federal census, the Shelby County Circuit and Chancery Courts do not have jurisdiction over
such actions.”)
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claim.3 She cited Tennessee Code Annotated section 36-2-303, which provides, “Absent
an order of custody to the contrary, custody of a child born out of wedlock is with the
mother.”
Mother further argued that the chancery court lacked jurisdiction to enter an
emergency custody order pursuant to Tennessee Code Annotated section 36-6-219 of the
UCCJEA because the child was not present in this state. She argued that the UIFSA
provision cited by Mr. Brooks regarding child support was inapplicable as well. She asked
the chancery court to dismiss Mr. Brooks’ complaint, to set aside all subsequent orders as
void ab initio, and to award her attorney’s fees.
Mother attached numerous exhibits to her motion to dismiss, including her own
affidavit. Mother stated that after the child was born in Nevada, she and the child had
moved to California and resided there ever since. Mother stated that neither she nor the
child had ever relocated to Tennessee with the intention to make it their home. She
acknowledged that she and the child made eight trips to Tennessee between July and
November 2020, ranging in duration from two to eighteen days. However, Mother stated
that neither she nor the child had been present in Tennessee since November 26, 2020.
Mother stated that she had electronically signed the lease agreement on the Memphis condo
from out-of-state because Mr. Brooks told her that it was necessary in case she wanted to
access the condo when he was not there. She said she had moved a limited amount of
personal property from her California residence to the condo and brought a vehicle for use
while she was in town, but that she did not intend to establish a residence here. She said
none of the expenses related to the condo were in her name. Mother also stated that Mr.
Brooks had subsequently purchased the condo himself and decided to rent it, so all of her
personal property was removed by November. Mother said she maintained her two-year
lease on her home in California, had a post office box there, was registered to vote there,
had a California driver’s license, registered her car and obtained insurance in California,
and maintained a California address on her passport application, bank accounts, and phone
bills. She attached numerous supporting documents to her affidavit. She also submitted
the affidavit of the child’s nanny since birth, who stated that Mother and the child had
resided in California since the child’s birth. The nanny stated that Mother and the child
began traveling periodically to Tennessee in late July to visit Mr. Brooks and that she had
accompanied them for almost all of their visits. However, the nanny stated that their last
visit to Tennessee was in November 2020.
Mr. Brooks’ motions for default judgment and to compel disclosure of the location
of the child and Mother were already set for a hearing on January 29, the day after Mother
3
“Lack of standing may be raised as a defense under Rule 12.02(6) of the Tennessee Rules of Civil
Procedure.” Heredia v. Gibbons, No. M2016-02062-COA-R3-CV, 2019 WL 3216623, at *3 (Tenn. Ct.
App. July 17, 2019) perm. app. denied (Tenn. Dec. 4, 2019) (citing Knierim v. Leatherwood, 542 S.W.2d
806, 808 (Tenn. 1976)). Whether a party has standing is a question of law. Id.-7-
filed her motion to dismiss. As such, Mother filed a motion asking the court to reconsider
hearing those motions and to decide the jurisdictional issues first. At the hearing the
following day, Mother’s counsel appeared and again asked the court to expeditiously hear
the motion to dismiss regarding the jurisdictional issues before deciding other issues in the
case. Mother’s counsel cited Tennessee Code Annotated section 36-6-210 of the UCCJEA,
which states, “If a question of existence or exercise of jurisdiction under this part is raised
in a child-custody proceeding, the question, upon request of a party, must be given priority
on the calendar and handled expeditiously.” However, Mr. Brooks’ counsel insisted that
she needed thirty days to file a response to the motion to dismiss before it was heard. Mr.
Brooks’ counsel conceded that the court should not go forward with hearing the motion for
default judgment that day in light of Mother’s filing of the motion to dismiss, but counsel
did insist on proceeding with the motion to compel disclosure of Mother’s whereabouts.
The chancellor stated that he was aware of the filing of Mother’s motion to dismiss the
previous day but had only “had a cursory [] look at it.” He decided to set the hearing on
the motion to dismiss for a later date but nevertheless found it appropriate to proceed with
hearing the motion to compel disclosure of the location of the child and Mother due to the
“emergency” nature of the allegations. The chancellor suggested that Mother could have
easily “showed up today and brought the baby” to demonstrate that the child was fine, then
pursued the issue of jurisdiction at a later date. He stated that the UCCJEA was meant to
“avoid this type of evading the jurisdictions of the court.” Counsel for Mother reiterated
Mother’s position that the chancery court lacked subject matter jurisdiction to enter any
order and suggested that she could not have appeared without waiving her objection to
personal jurisdiction. Counsel also informed the court that another proceeding had been
filed in California and was currently pending. (Mother had filed a parentage action in
California on January 20). Counsel for Mother began to describe the various arguments
set out in the motion to dismiss. However, the chancellor interrupted, stating,
Well, when are you going -- when are you going to affirmatively address the
points that I asked you to address, whether or not you’re going to -- are you
going to disclose or will your client disclose the address where the child is?
. . . That’s either a ‘yes’ or ‘no,’ at this point, because I’ve given you a good
leeway from your argument and you’re going -- defaulting back to what you
initially started on and the day is rapidly closing and I need an answer to
these questions so that I can move my docket.
The chancellor said that he did not intend to resolve the motion to dismiss that day but
indicated that he intended to proceed with other matters in the meantime. Mr. Brooks’
counsel announced that she would be filing a petition for contempt against Mother later
that day, and the trial judge inquired about setting it for a hearing the following week.
When the chancellor asked Mother’s counsel about his calendar availability, counsel
emphasized his notice of limited appearance and that he could not address other matters
and appear with his client for a contempt hearing without a ruling from the trial court on
the jurisdictional issues. He again asked the court to stay consideration of any other matters
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until the motion to dismiss was resolved. The chancellor interrupted, with an immediate
ruling on the motion to dismiss:
THE COURT: Let me give you a ruling, then, that you can take back to your
client. It is the Court’s information -- do you have a pen? Are you ready to
take it down?
MR. SMITH: We have the court reporter, Your Honor.
THE COURT: It is the Court’s position that based upon the allegations that
were made, that this child has already been exposed to Covid-19 and has,
indeed, contracted it. And that notwithstanding that, the mother continues to
travel to various and sundry places, exposing the child yet again to the virus.
The mother also has failed to provide [Mr. Brooks] with any information as
to the condition of the child and whether or not the virus has adversely
affected the health of the child.
This Court is of the opinion that the case is an emergency situation
and the child needs the protection of this Court in order to protect the child.
The mother’s failure to cooperate with [Mr. Brooks] and with Counsel for
[Mr. Brooks] and with the Court having sent its orders out heightens the
Court’s concern about this situation. The mother has certainly avoided
service from the allegations that have been presented to the Court. The
mother has not submitted to the jurisdiction of either court. There have been
informations from Counsel today that the mother may submit to the
jurisdiction of one Court, but there is no proof to this Court that any of that
has been done. The mother has redacted her address and has not responded
to requests from [Mr. Brooks’] counsel.
The Court is overly concerned about the welfare of this child. It is a
easy chore to communicate with [Mr. Brooks] and/or [Mr. Brooks’] counsel.
There has been some information to the Court that she is concerned for her
safety without any proof of the same.
I have advised counsel that the Court is willing to make sure that the
child -- that the mother is safe, provided the – that her Attorney [] gives the
Court some assurance of the child’s whereabouts and the child’s safety.
Counsel has not done so. So the Court is going to take jurisdiction of this
case. The motion to dismiss for lack of jurisdiction is denied.
Now, let’s move on.
As the chancellor’s oral ruling reflects, it did not contain any discussion of the UCCJEA,
UIFSA, or Tennessee’s parentage statutes, only the chancellor’s concern about the
“emergency” nature of the allegations.
Immediately after the chancellor’s oral ruling, Mr. Brooks’ counsel asked the
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chancellor to enter an order containing “a legal finding of paternity,” suggesting that the
chancery court “does have the authority to do that” based on the DNA test attached to Mr.
Brooks’ complaint. Mother’s counsel asked for a stay pending an appeal, which the
chancellor denied. The chancellor explained that he intended to proceed by setting a
hearing on Mr. Brooks’ motion for default judgment and petition for contempt. He
ultimately decided to address Mr. Brooks’ oral request for a legal finding of paternity at
the next hearing. The chancellor granted Mr. Brooks’ motion to compel disclosure of the
location of the child and Mother by 3:00 the following Monday. The chancellor asked
counsel for Mr. Brooks to prepare an order denying Mother’s motion to dismiss on all
grounds asserted therein.
After the chancellor’s oral ruling at the hearing on Friday, January 29, Mother filed
an application for an extraordinary appeal to this Court on Monday, February 1. She also
sought an immediate stay of the trial court proceedings pending resolution of the appeal.
Mother argued that the trial court had so far departed from the accepted and usual course
of judicial proceedings as to require immediate review and that review was necessary for
a complete determination to be possible in a later appeal. She framed six issues for review
on appeal related to the trial court’s various rulings. On the same day that the application
for an extraordinary appeal was filed, the chancery court entered its written order granting
Mr. Brooks’ motion to compel disclosure of the location of the child and Mother.
The following day, on February 2, Mr. Brooks filed (in the chancery court) a motion
for leave to file a response to Mother’s motion to dismiss, in light of the fact that the motion
to dismiss had been filed the day before the January 29 hearing and Mr. Brooks had not yet
filed a response. However, Mr. Brooks noted that the chancellor had already orally denied
Mother’s motion to dismiss during the January 29 hearing. Mr. Brooks also noted that
Mother had filed an application for an extraordinary appeal of the oral ruling and sought a
stay of the trial court proceedings. Still, Mr. Brooks sought the opportunity to file a
response to the motion to dismiss with supporting affidavits in order to contest Mother’s
affidavits regarding her residence. The following day, on February 3, the chancery court
entered an order granting Mr. Brooks leave to file a response to the motion to dismiss.
On February 5, Mr. Brooks filed an amended complaint in chancery court, which
he entitled, an “Amended Complaint for Emergency Custody, for Injunctive Relief, and to
set Child Support, and for Custody of the Minor Child.” (emphasis added). Mr. Brooks
incorporated by reference the allegations of his original complaint, but he also added the
following paragraphs that are relevant to this appeal:
12. At the time [Mr. Brooks] filed his initial Complaint, [Mr. Brooks] was
seeking an emergency order for custody of the child pursuant to T.C.A. § 36-
6-219.
13. As an amendment to his initial Complaint, [Mr. Brooks] now seeks an
initial custody determination from this Court pursuant to T.C.A. § 36-6-216.
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....
21. [Mr. Brooks] alleges that this Court has jurisdiction to make an initial
custody determination pursuant to T.C.A. § 36-6-216 because the child did
not have a “home state” for more than six (6) months prior to the filing of
[Mr. Brooks’] initial Complaint.
Describing Mother’s actions during the litigation thus far, Mr. Brooks asserted that it was
in the child’s best interest for him to have custody and be named primary residential parent
pursuant to Tennessee Code Annotated section 36-6-106. Mr. Brooks’ amended complaint
also included a request for “a legal finding that he is the father of the party’s minor child[.]”
Mr. Brooks asserted that he was rebuttably presumed to be the father of the child due to
the DNA test and Tennessee Code Annotated section 36-2-304. Also in his amended
complaint, Mr. Brooks asserted, for the first time, that he had filed his initial complaint in
chancery court rather than juvenile court because an outbreak of Covid-19 in the
courthouse had resulted in the juvenile court having a restricted docket. Mr. Brooks
attached to his amended complaint a proposed parenting plan, affidavits, and numerous
text messages. Notably, in Mr. Brooks’ attached affidavit, he stated, “I have not seen nor
known the location of my child since Thanksgiving 2020[.]”
Later in the day on February 5, hours after the filing of Mother’s amended complaint
in chancery court, this Court entered an order addressing the pending application for an
extraordinary appeal. We noted that most of the oral rulings challenged by Mother had not
yet been reduced to written orders. As a result, we directed Mother to obtain entry of
signed written orders for each oral ruling challenged. However, we added, “[A] stay of
proceedings in the trial court is appropriate in this case pending our decision on the Rule
10 application. All orders and proceedings in the trial court pertaining to this matter, other
than the orders described above, are hereby stayed pending further Order of this court.”
Later that same afternoon, Mr. Brooks filed his response to Mother’s motion to
dismiss in chancery court. He attached affidavits and other documents to his response. Mr.
Brooks’ response stated that “he believed Mother and the minor child may have still been
in the State of Tennessee when he filed his initial complaint” on December 10, as “Mother
indicated to him as recently as December 8, 2020 that she and the child were still in
Tennessee.” However, he admitted that he “had no way of knowing with certainty that the
minor child was still present in Tennessee at the time of filing because Mother was and
continues to actively conceal the child’s location.” Mr. Brooks argued that Mother and the
child traveled so extensively that they had no home state prior to the filing of Mr. Brooks’
complaint on December 10. Thus, Mr. Brooks argued that the chancery court should have
jurisdiction under the UCCJEA to establish an initial custody order pursuant to Tennessee
Code Annotated section 36-6-216, as requested in his amended complaint, aside from any
issue of temporary emergency jurisdiction under section 36-6-219. He argued that physical
presence in the state is not necessary to make an initial custody determination.
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Mr. Brooks also addressed the issue of establishing paternity in his response. Mr.
Brooks admitted that he had never executed a voluntary acknowledgement of paternity or
obtained an order establishing parentage. However, Mr. Brooks maintained that the DNA
test vested him with standing to sue for custody and establish child support under
Tennessee law. Mr. Brooks argued that the juvenile court does not have exclusive
jurisdiction over parentage actions in Shelby County because Shelby County is no longer
within the population range mentioned in the statute. Thus, Mr. Brooks reiterated his
request for the chancery court to declare him the legal father of the child.
On February 16, the chancery court entered a 22-page written order denying
Mother’s motion to dismiss. The order notes that the motion was heard during the January
29 Zoom hearing but that leave was subsequently granted for the filing of a response to the
motion, and various pleadings were filed after the hearing. At the outset, the order states
that Mother and Mr. Brooks were unmarried and that there was no father listed on the birth
certificate or order establishing paternity. The order states that Mother and Mr. Brooks
were “presumed to have a daughter together” pursuant to the DNA test and the rebuttable
presumption provided in Tennessee Code Annotated section 36-2-304. However, the order
emphasized that the court had thus far “made no determination of parentage.” The order
expressly noted that Mr. Brooks had filed an amended complaint in which he requested “a
paternity determination” but said “[t]his matter is not yet before the Court.” The court
acknowledged Mother’s arguments regarding the juvenile court of Shelby County having
exclusive jurisdiction of parentage actions, but the court reasoned that Mother’s argument
was not “on point in regards to the jurisdiction of the Court under Tennessee Code
Annotated § 36-6-219.” The court emphasized that it had “acquired jurisdiction under
Tennessee Code Annotated § 36-6-219 by the emergency nature of the issues brought
before the Court[.]” Having concluded that the amended complaint was not yet before the
court, the chancery court emphasized that “[Mr. Brooks’] Complaint was brought under
Tennessee Code Annotated § 36-6-219, the temporary emergency jurisdiction provision
of the UCCJEA,” and it did not seek an initial custody determination under section 36-6-
216 or a parentage determination under section 36-2-307. According to the court, the
authority Mother cited regarding exclusive jurisdiction “applied to a parentage action
pursuant to Tennessee Code Annotated § 36-2-307” and “the jurisdiction of a Tennessee
court to make an initial child custody determination pursuant to the requirements of
Tennessee Code Annotated § 36-6-216,” but it was “not germane to the subject matter
jurisdiction of the emergency powers conferred upon this Court by Tennessee Code
Annotated § 36-6-219(a).” The chancery court said it had thus far only “assumed its
authority” pursuant to Tennessee Code Annotated section 36-6-219 and its power to set
temporary custody on an emergency basis.4
4
The chancery court noted that section 36-6-216 of the UCCJEA separately addresses jurisdiction
to make an initial custody determination. Regarding that section, the court described the “home state” of
the child as “unclear . . . in this case” but said that it had “not yet determined” whether Tennessee meets the
definition of the child’s home state. The court suggested that Mother and [Mr. Brooks] both have a
“significant connection” to Tennessee within the meaning of section 216 despite Mother’s “multiple
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Regarding the exercise of temporary emergency jurisdiction, the court found that
Mother had unnecessarily exposed the child to Covid-19 by traveling across the country
with her and violated the court’s orders by disparaging Mr. Brooks on social media and
failing to cooperate with the court. The order states, “At the time of filing this case in
Shelby County, Mr. Brooks did not know the location of Mother or the Minor Child.”
Despite this finding, however, the court concluded that “Mother and the Minor Child were
present in the state of Tennessee at the time of the filing of the complaint[.]”
After the entry of the chancery court’s lengthy order denying the motion to dismiss,
Mother filed a motion pursuant to Tennessee Rule of Civil Procedure 60.01 for the trial
court to correct its order, citing the significant differences in the written order and the trial
court’s oral ruling from the January 29 hearing. On April 22, the chancery court entered
an order denying the motion to correct errors pursuant to Rule 60.01. The order clarified
that the court had considered the response and affidavits filed by Mr. Brooks after the
hearing but before the written order was entered. The court also said it had “discounted
the veracity” of Mother’s affidavit, as the documents purporting to show her residence in
California showed a variety of different zip codes for the addresses used by Mother. The
court said it had “question[ed] [Mother’s] credibility” and declined to rely on her affidavits.
To explain its finding that Mother and the child were present in the State of Tennessee
when the complaint was filed, the trial court pointed to the allegation in Mr. Brooks’
complaint that Mother had advised him that the child was in Memphis as recently as
December 8, Mr. Brooks’ testimony at the hearing about Mother’s Facebook Marketplace
listing of a couch for sale in Memphis on or about December 14, and the affidavit of Mr.
Brooks’ counsel stating that Mr. Brooks “believe[d]” Mother to be in Shelby County. The
trial court reasoned that Mr. Brooks’ later admission that he did not know the location of
the child did not contradict the court’s conclusion that the child was in Tennessee.
In light of the various written orders finally entered by the trial court, this Court
allowed Mother to submit a supplemental Rule 10 application to this Court. Mother
submitted an amended application with eleven issues presented for review. Mr. Brooks
filed an amended answer. On June 8, this Court granted Mother’s application for an
extraordinary appeal, but we framed the sole issue as whether Mr. Brooks had standing to
file the complaint for emergency custody, for injunctive relief, and to set child support in
the chancery court of Shelby County. All proceedings in the trial court were to remain
stayed pending resolution of the issue on appeal.
II. DISCUSSION
“Parentage is an area of law governed primarily by statute.” In re C.K.G., 173
abodes.” However, the court also stated that it had not yet decided whether Mr. Brooks would be considered
a “person acting as a parent” within the meaning of the UCCJEA. The order never mentioned UIFSA.
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S.W.3d 714, 721 (Tenn. 2005). Thus, we begin with a brief overview of Tennessee’s
parentage statutes, set forth in Title 36, Chapter 2 of the Tennessee Code. Tennessee Code
Annotated section 36-2-301 states, “This chapter provides a single cause of action to
establish parentage of children other than establishment by adoption pursuant to chapter 1
of this title, or by acknowledgement of parentage pursuant to § 68-3-203(g), § 68-3-302 or
§ 68-3-305(b).” The statutory scheme explicitly provides that “[a]bsent an order of custody
to the contrary, custody of a child born out of wedlock is with the mother.” Tenn. Code
Ann. § 36-2-303. Section 304 provides five ways for a man to be “rebuttably presumed to
be the father of a child,” and one of those is if “[g]enetic tests have been administered as
provided in § 24-7-112,5 an exclusion has not occurred, and the test results show a
statistical probability of parentage of ninety-five percent (95%) or greater.” Tenn. Code
Ann. § 36-2-304(a)(5). However, except under certain circumstances, these presumptions
“may be rebutted in an appropriate action.” Tenn. Code Ann. § 36-2-304(b)(1). Section
305 states, “Absent an agreement or an acknowledgement of parentage as prescribed by §
68-3-203(g), § 68-3-302, or § 68-3-305(b), a complaint to establish parentage may be
filed.” Tenn. Code Ann. § 36-2-305(b)(1). Section 307, which we have already quoted in
pertinent part above, provides:
The juvenile court or any trial court with general jurisdiction shall have
jurisdiction of an action brought under this chapter; provided, that, in any
county having a population not less than eight hundred twenty-five thousand
(825,000) nor more than eight hundred thirty thousand (830,000), according
to the 1990 federal census or any subsequent federal census, only the juvenile
court shall have jurisdiction of an action brought under this chapter.
Tenn. Code Ann. § 36-2-307(a)(1). Section 311 provides that upon establishing parentage,
“the court shall make an order declaring the father of the child,” and the order must also
include a determination of custody and visitation pursuant to chapter 6 of Title 36 and a
determination of child support pursuant to chapter 5. Tenn. Code Ann. § 36-2-311(a)(9)-
(11).
This Court examined the rights of unwed parents in relation to these statutes in two
recent cases. The first was a case strikingly similar, procedurally, to this one -- Milton v.
Harness, No. E2017-00092-COA-R10-CV, 2017 WL 837704 (Tenn. Ct. App. Mar. 3,
2017). In Milton, the mother and father had a child born out of wedlock. Id. at *1. When
the child was an infant, DNA testing confirmed that the father was the biological father of
the child. Id. Years later, when the mother and the child moved to Arizona, the father filed
a petition in Tennessee seeking to legitimate the child and obtain custody. Id. at *2. The
father alleged that Tennessee was the child’s “home state” within the meaning of the
5
“Paternity tests in parentage actions are governed by Tennessee Code Annotated § 24-7-112.” In
re Michael J., No. M2016-01985-COA-R3-JV, 2018 WL 638250, at *2 (Tenn. Ct. App. Jan. 31, 2018)
(citing Tenn. Code Ann. § 36-2-309(a)).
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UCCJEA, and therefore, Tennessee had jurisdiction to make an initial custody
determination. Id. His petition requested an injunction requiring the immediate return of
the child to Tennessee and a transfer of custody to the father. Id. The trial court issued the
requested ex parte injunctions based on the allegations in the complaint and denied the
mother’s later motion to set them aside. Id. at *2-3. She then filed an application for an
extraordinary appeal to this Court. Id. at *3. We granted the application and concluded
that the child should be immediately returned to the mother pending further action on the
petition. Id. We found that the trial court’s ex parte injunctions were “without legal
authority” and resulted in the mother losing “her unqualified right to exclusive custody of
[the child] during the pendency of the proceedings below[.]” Id. at *4. Pursuant to
Tennessee Code Annotated section 36-2-303, we noted, “custody of a child born out of
wedlock is with the mother” absent an order of custody to the contrary. Id. Despite the
DNA test, we explained, “‘Being a child’s biological father is not sufficient, by itself, to
qualify a man as a child’s legal parent or as a child’s putative biological father.” Id.(quoting In re Bernard T., 319 S.W.3d 586, 598 (Tenn. 2010)). We also said the fact that
the father had signed an acknowledgement of paternity in another state did not “vest in him
any custodial or visitation rights[.]” Id.In Baxter v. Rowan, 620 S.W.3d 889 (Tenn. Ct. App. 2020), this Court reexamined
some of the language used in Milton regarding the effect of a voluntary acknowledgement
of paternity. The Court agreed with Milton’s statement that a voluntary acknowledgement
of paternity “does not vest any custody rights or visitation rights upon the legal father,” but
we disagreed with the suggestion that the execution of a voluntary acknowledgement of
paternity does not vest the father “with standing to sue for custody and visitation rights.”
Id. at 894. We explained that a voluntary acknowledgement of paternity is “a simplified
procedure in which unmarried fathers may legally establish their paternity over a child
without ‘further order of the court.’” Id. at 893 (quoting Tenn. Code Ann. § 24-7-113(a)).
Simply put, “a properly executed [voluntary acknowledgement of paternity] establishes a
‘legal relationship’ between the father and the child.” Id. at 895. As such, a voluntary
acknowledgement of paternity confers standing on the father to sue for custody or visitation
rights. Id. The mother in Baxter insisted that “an order of parentage is the only mechanism
by which a father may establish parentage and acquire standing to sue for custody or
visitation.” Id. at 896. We disagreed, noting that the parentage statutes expressly provide
“‘a single cause of action to establish parentage of children other than by adoption ... or by
acknowledgement of parentage,” Id. (quoting Tenn. Code Ann. § 36-2-301), and provide
that “‘[a]bsent an agreement or an acknowledgement of parentage as prescribed by § 68-
3-203(g), § 68-3-302, or § 68-3-305(b), a complaint to establish parentage may be filed.’”
Id. (quoting Tenn. Code Ann. § 36-2-305(b)(1)). Thus, we concluded that “the Code
provides for multiple ways in which parentage may be established rather than the sole
option of filing suit to specifically establish same.” Id. In sum, we explained that “an order
establishing parentage is not the sole manner in which a father may obtain standing to sue
for custody and visitation rights.” Id. (emphasis added).
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In the case at bar, Mr. Brooks admits that he has not obtained an order of parentage
or signed a voluntary acknowledgment of paternity in order to obtain standing to sue for
custody, but he nevertheless argues that the DNA test should give him standing to sue for
custody exactly like a voluntary acknowledgement of paternity, extending the reasoning of
Baxter. We disagree. “Being a child’s biological father is not sufficient, by itself, to
qualify a man as a child’s legal parent[.]” In re Bernard T., 319 S.W.3d at 598. “Once the
biological father has established his paternity, his constitutionally-protected fundamental
right to parent his child vests and he is the legal father.” In re T.K.Y., 205 S.W.3d 343, 352
(Tenn. 2006). However, as we explained in another case, one does not legally “establish
his paternity” simply by obtaining a DNA test. In In re A.N.F., No. W2007-02122-COA-
R3-PT, 2008 WL 4334712, at *16 (Tenn. Ct. App. Sept. 24, 2008), an appellant argued
that the language from T.K.Y. about establishing “paternity” meant that a man
“automatically became the legal father of [the child] as soon as the independently obtained
DNA test established the probability of his paternity.” We disagreed, emphasizing that one
can become a legal parent in statutorily defined circumstances, including when paternity is
adjudicated by a court or established through a voluntary acknowledgment of paternity.
Id. Thereafter, the definition of a “legal parent” was amended to include the following
provision:
A man shall not be a legal parent of a child based solely on blood, genetic,
or DNA testing determining that he is the biological parent of the child
without either a court order or voluntary acknowledgement of paternity
pursuant to § 24-7-113. Such test may provide a basis for an order
establishing paternity by a court of competent jurisdiction, pursuant to the
requirements of § 24-7-112.
2010 Tenn. Laws Pub. Ch. 888 (S.B. 3001); see Tenn. Code Ann. § 36-1-102(29)(B).
As it is, when Mr. Brooks filed this lawsuit, he had not obtained (nor did he seek)
an order of parentage, he had not signed a voluntary acknowledgement of paternity, and he
did not meet any of the definitions of a legal parent. Mr. Brooks had not yet established
any legal relationship with the child. Thus, we conclude that the trial judge erred in
entering its initial restraining orders awarding Mr. Brooks immediate relief regarding the
child, its order issuing injunctive relief requiring Mother to immediately transfer custody
of the child to Mr. Brooks, and its order granting Mr. Brooks’ motion for disclosure of the
location of the child. As in Milton, the trial court’s action resulted in Mother losing “her
unqualified right to exclusive custody of [the child] during the pendency of the proceedings
below[.]” 2017 WL 837704, at *4.
Mr. Brooks argues, and the chancery court found, that this case is distinguishable
from Milton because, here, Mr. Brooks sought a temporary emergency custody order
pursuant to the UCCJEA, Tennessee Code Annotated section 36-6-219. The statute
provides:
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(a) A court of this state has temporary emergency jurisdiction if the child is
present in this state and the child has been abandoned or it is necessary in an
emergency to protect the child because the child, or a sibling or parent of the
child, is subjected to or threatened with mistreatment or abuse.
Tenn. Code Ann. § 36-6-219(a). Without reaching the issue of whether Mr. Brooks would
have had standing to seek a temporary emergency custody order of this nature under
appropriate circumstances, we find that a court of this state did not have temporary
emergency jurisdiction in any event because the child was not “present in this state.” See
id.The UCCJEA “governs jurisdiction between Tennessee and other states over child
custody proceedings.” Button v. Waite, 208 S.W.3d 366, 369 (Tenn. 2006). Whether a
court has jurisdiction under the UCCJEA “is a question of law over which our review is de
novo with no presumption of the correctness of the ruling of the lower courts.” Id. In
another case involving the UCCJEA, this Court provided a helpful discussion of the
methods for challenging subject matter jurisdiction:
Two methods are available to challenge a court’s subject matter
jurisdiction. The first, and most common, is a “facial” challenge. The second
is a “factual” challenge. Thomas v. Mayfield, No. M2000-02533-COA-R3-
CV, 2004 WL 904080, at *4-5 (Tenn. Ct. App. Apr. 27, 2004), perm. app.
denied (Tenn. Nov. 15, 2004); 2 JAMES W. MOORE ET AL., MOORE’S
FEDERAL PRACTICE § 12.30[4] (3d ed. 2005).
The process used to consider a “facial” challenge to a court’s subject
matter jurisdiction resembles the method for deciding motions to dismiss for
failure to state a claim upon which relief can be granted. Jetform Corp. v.
Unisys Corp., 11 F.Supp.2d 788, 789 (E.D. Va. 1998); Avellino v. Herron,
991 F.Supp. 722, 725 (E.D. Pa. 1997). A facial challenge makes war on the
complaint itself. It asserts that the complaint, considered from top to bottom,
fails to allege facts that show that the court has power to hear the case. See,
e.g., Crawford v. United States Dep’t of Justice, 123 F.Supp.2d 1012, 1013-
14 (S.D. Miss. 2000). In deciding a facial challenge, the court considers the
impugned pleading and nothing else. Laird v. Ramirez, 884 F.Supp. 1265,
1272 (N.D. Iowa 1995); Ensign–Bickford Co. v. ICI Explosives USA, Inc.,
817 F.Supp. 1018, 1023 (D. Conn. 1993). If a complaint attacked on its face
competently alleges any facts which, if true, would establish grounds for
subject matter jurisdiction, the court must uncritically accept those facts, end
its inquiry, and deny the dismissal motion. Great Lakes Educ. Consultants
v. Fed. Emergency Mgmt. Agency, 582 F.Supp. 193, 194 (W.D. Mich. 1984).
“Factual” challenges to subject matter jurisdiction require a different
approach both in the trial court and on appeal. A factual challenge denies
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that the court actually has subject matter jurisdiction as a matter of fact even
though the complaint alleges facts tending to show jurisdiction. It
controverts the complaint’s factual allegations regarding jurisdiction,
Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993),
and puts at issue the sufficiency of the evidence to prove facts that would
bring the case within the court’s subject matter jurisdiction, Ensign–Bickford
Co. v. ICI Explosives USA, Inc., 817 F. Supp. at 1023. A factual challenge
to subject matter jurisdiction . . . does not require the court to convert the
motion into one for summary judgment. Chenault v. Walker, 36 S.W.3d 45,
55-56 (Tenn. 2001). Instead, the court must resolve these factual issues, at
least preliminarily. Edick v. Poznanski, 6 F.Supp.2d 666, 668 (W.D. Mich.
1998); Malkin v. United States, 3 F.Supp.2d 493, 497 (D. N.J. 1998). The
court must “determine whether the evidence in favor of finding jurisdiction
is sufficient to allow the case to proceed.” Chenault v. Walker, 36 S.W.3d at
56.
In assessing factual challenges to subject matter jurisdiction at the
motion to dismiss stage, a court must keep in mind that the plaintiff bears the
ultimate burden of proving facts establishing the court’s jurisdiction over the
case. Chenault v. Walker, 36 S.W.3d at 56; Wilson v. Sentence Info. Servs.,
No. M1998-00939-COA-R3-CV, 2001 WL 422966, at *5 (Tenn. Ct. App.
Apr. 26, 2001) (No Tenn. R. App. P. 11 application filed).
Staats v. McKinnon, 206 S.W.3d 532, 542-43 (Tenn. Ct. App. 2006) (footnotes omitted).
In making its determination, the court should not credit “conclusory allegations or draw[]
farfetched inferences.” Id.Mr. Brooks’ complaint filed on December 10 did not even allege that the child was
present in the State of Tennessee. Instead, it asserted,
[Mr. Brooks] alleges that this Court has jurisdiction to issue an emergency
order concerning the minor child under Tennessee Code Annotated § 36-6-
219 because Mother has subjected the minor child to abandonment and
mistreatment, and the minor child is presently threatened with mistreatment
by exposing the child to COVID-19 and to Mother’s unstable behaviors if
this Court does not exercise emergency jurisdiction and take immediate
action to protect the minor child.
It explicitly stated, “Mother has possibly removed the child from Shelby County
Tennessee, although the Mother has advised [Mr. Brooks] that the minor child is in
Memphis as recently as December 8, 2020.” Mr. Brooks alleged that he had most recently
seen the child on November 26. He sought an injunction enjoining Mother from removing
the child from Shelby County or requiring her to return to Shelby County if she had already
left. Mr. Brooks attached an affidavit of his attorney, who stated, “The current location of
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[Mother] in this cause is unknown, although [Mr. Brooks] believes her to currently be in
Shelby County, Tennessee. No attempt at notice has been made to [Mother], as [Mr.
Brooks] fears that [she] will leave the jurisdiction of this Court with the minor child should
she know in advance about the filing of the herein action.” (numbering omitted). At the
hearing the following week, counsel submitted another affidavit stating that Mr. Brooks’
attempts to serve Mother at the Memphis condo on December 10 and 11 were unsuccessful.
She stated that service was also attempted at Mother’s parents’ home in Nevada on
December 12 and “left at the door” there on November 14. Mr. Brooks’ counsel informed
the chancellor that Mother “on December 12th posted on a Facebook Marketplace post that
she was trying to sell a couch and her profile said that she was located in Memphis,
Tennessee.” However, she also submitted a social media post depicting Mother on a
private plane with the caption, “Catch Me If You Can.” Based on this limited information,
the chancery court entered its order issuing injunctive relief placing the child in the custody
of Mr. Brooks. Notably, the court made no finding that the child was present in the state
at that time or at the time of filing of the complaint. The court simply ordered that the child
must remain in Shelby County or be returned to Shelby County if she was no longer
present.
Mother filed a motion to dismiss on the basis that the trial court lacked subject
matter jurisdiction to enter a temporary emergency custody order because the child was not
present in the state. In support of Mother’s motion to dismiss, Mother filed her own
affidavit listing the dates that she and the child had been in Tennessee and stating that they
were last in Tennessee on November 26, 2020. She also submitted the affidavit of the
child’s nanny, who stated that she knew the extent to which Mother and the child had
traveled to Tennessee, and neither Mother nor the child had been present in Tennessee
since late November. Thus, we construe Mother’s challenge to subject matter jurisdiction
under the UCCJEA as a factual challenge. A factual challenge “attacks the sufficiency of
the evidence to prove the alleged jurisdictional facts.” Church of God in Christ, Inc. v. L.
M. Haley Ministries, Inc., 531 S.W.3d 146, 160 (Tenn. 2017). “[C]ourts presented with
such motions must weigh the evidence, resolve any factual disputes, and determine whether
subject matter jurisdiction exists.” Id.In Mr. Brooks’ response to Mother’s motion to dismiss, he stated,
9. [Mr. Brooks] alleges that he believed Mother and the minor child may
have still been in the State of Tennessee when he filed his initial complaint,
and that Mother indicated to him as recently as December 8, 2020 that she
and the child were still in Tennessee[.]
10. [Mr. Brooks] asserts that he had no way of knowing with certainty that
the minor child was still present in Tennessee at the time of filing because
Mother was and continues to actively conceal the child’s location.
Interestingly enough, in the section of his response addressing service of process, Mr.
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Brooks suggested that service in Nevada was appropriate because “[Mr. Brooks] had
reason to believe Mother was staying in Nevada with her family, and Mother’s bank
statements indicate that she spent at least seventy-three (73) days in Nevada from June 9,
2020 through December 9, 2020.” Mr. Brooks also admitted in his attached affidavit, “I
have not seen nor known the location of my child since Thanksgiving 2020[.]” In the trial
court’s order denying Mother’s motion to dismiss, the court stated that it had assumed
emergency jurisdiction pursuant to Tennessee Code Annotated section 36-6-219. The
order states, “At the time of filing this case in Shelby County, Mr. Brooks did not know
the location of Mother or the Minor Child.” However, the court went on to find that
“Mother and the Minor Child were present in the state of Tennessee at the time of the filing
of the complaint[.]”
In its subsequent order on the Rule 60.01 motion, the chancery court provided the
rationale for its conclusion about the child’s presence in Tennessee. First, the chancellor
stated that he questioned Mother’s credibility and discounted her affidavits because of
some different zip codes listed in her supporting documentation about her residence. As
affirmative evidence of the child’s presence in Tennessee, the chancellor said there were
“material facts upon which the Court relied to assume its emergency jurisdiction.” First,
the chancellor pointed to the allegation in the complaint that Mother had advised Mr.
Brooks that the child was in Memphis as recently as December 8. Next, he noted the
posting of the couch for sale on December 12 or 14. And finally, he noted Mr. Brooks’
counsel’s affidavit stating that Mr. Brooks did not know the location of Mother but believed
her to be in Shelby County.
Even if we were to discount Mother’s proof entirely, Mr. Brooks did not establish
that the child was present in the State of Tennessee when the complaint was filed on
December 10 (or has been since). Again, “in assessing factual challenges to subject matter
jurisdiction at the motion to dismiss stage, a court must keep in mind that the plaintiff bears
the ultimate burden of proving facts establishing the court’s jurisdiction over the case.”
Staats, 206 S.W.3d at 543 (citing Chenault, 36 S.W.3d at 56; Wilson, 2001 WL 422966, at
*5). Here, that burden was on Mr. Brooks. Mr. Brooks did not establish the child’s
presence in this State at the time of filing through the allegation in his complaint of what
Mother had advised him as of December 8, nor did his counsel establish the child’s
presence by stating that Mr. Brooks did not know Mother’s location but subjectively
believed her to be in Shelby County. Mr. Brooks did not explain the basis for this
conclusory belief and later conceded he “had no way of knowing with certainty that the
minor child was still present in Tennessee at the time of filing” because Mother was already
actively concealing the child’s location. Finally, Mr. Brooks did not establish the child’s
presence in the state with the online listing of the couch for sale in Memphis. The online
listing simply stated, “Crate and barrel extra large couch $700 Listed 2 days ago in
Memphis TN.” Under “Seller Information,” it listed Mother’s name with “Joined
Facebook in 2020” and “Memphis, TN.” It is not clear whether the listing was intended to
show the location of the couch or Mother, but under the circumstances, it certainly did not
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prove the location of the child on the date the petition was filed. In our opinion, this would
be the type of “farfetched” inference described in Staats.6
This Court examined the requirements of Tennessee Code Annotated section 36-6-
219 in P.E.K. v. J.M., 52 S.W.3d 653 (Tenn. Ct. App. 2001). In that case, a father had filed
a petition for temporary emergency custody alleging that his child had been taken to
California and that the mother had threatened that he would never see the child again,
causing him to fear for the child’s safety. Id. at 655. The same day his petition was filed,
the trial court awarded him temporary emergency custody under Tennessee Code
Annotated section 36-6-219. Id. In an extraordinary appeal to this Court, the mother
argued that because the child had already been removed from this state, the trial court was
without jurisdiction to enter a temporary emergency custody order. Id. at 657. We agreed,
rejecting the father’s argument that a court may enter a temporary emergency custody order
under the UCCJEA simply because it is “necessary to protect the child from abuse.” Id.“The predicate on which the statute operates is the child’s presence in this state and
circumstances that demand the court’s protection.” Id. We explained,
[T]here is no indication that the legislature intended to involve the courts of
this state in emergencies existing in other states. We think the statute can
only be read to say the courts of this state may issue a temporary emergency
order if the child is abandoned in this state or the child or a sibling or parent
is subjected to or threatened with abuse in this state. Otherwise the court
would be powerless to correct the situation posing a threat to the child.
Id. at 658. In P.E.K., “the temporary emergency custody order was invalid because the
child was not present in this state and the facts alleged were insufficient to obtain such an
order.” Id. at 654. We reversed the temporary emergency custody order and remanded for
further proceedings on the issues of paternity and whether the court had jurisdiction to
make a custody determination under section 36-6-216. Id. at 660-61.
Because the child in this case was not shown to be present in Tennessee, the
chancery court did not have the authority to invoke temporary emergency jurisdiction over
her. See Hernandez v. Hernandez, No. W2018-01388-COA-R3-CV, 2019 WL 3430534,
at *8 (Tenn. Ct. App. July 30, 2019) (“[T]he trial court did not have the authority to invoke
temporary emergency jurisdiction concerning the Child because the Child was not present
6
We recognize that in the chancery court’s order on the Rule 60.01 motion, the court also stated
that the court had “advised” Mother that the affidavits she submitted were insufficient for her to prevail and
“requested that she present proof in the case to support her jurisdictional position.” The order states that
Mother did not appear to testify and therefore “should not complain about the record,” and “[a]ny
evidentiary deficiencies are now waived.” However, it was ultimately Mr. Brooks’ burden to prove facts
establishing that the court had subject matter jurisdiction. See Staats, 206 S.W.3d at 543. Furthermore,
“[a] challenge to subject matter jurisdiction cannot be waived[.]” Church of God in Christ, Inc., 531 S.W.3d
at 157.
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in Tennessee[.]”). We now examine the effect of this ruling on the trial court’s existing
orders and the issues that remain to be decided in this case.
In Button v. Waite, 208 S.W.3d at 367, yet another extraordinary appeal, the
Tennessee Supreme Court reviewed a trial court’s order exercising temporary emergency
jurisdiction under Tennessee Code Annotated section 36-6-219. Although the child’s
presence in the state was not at issue, the Supreme Court concluded that the Court of
Appeals properly vacated the emergency order where the circumstances of the case did not
involve the type of “compelling emergency” that justified the exercise of temporary
emergency jurisdiction. Id. at 370. However, the Supreme Court determined that the Court
of Appeals had erred by remanding with instructions for the trial court to dismiss the case
for lack of jurisdiction. Id. The Supreme Court found it evident that the relief sought by
the petitioner was modification of a Hawaii court’s order, and the Supreme Court
concluded that the Tennessee court possessed jurisdiction to modify the order. Id. at 372.
As such, even though the temporary emergency order was vacated, the case was remanded
for further proceedings. Id. at 373.
Although we find it appropriate to vacate the trial court’s orders entered as an
exercise of temporary emergency jurisdiction, our further resolution of this appeal is
complicated by the fact that Mr. Brooks filed an amended complaint after the trial court’s
oral ruling and after the initial Rule 10 application to this Court. To briefly review the
relevant sequence of events, the chancellor orally ruled that he was denying Mother’s
motion to dismiss, and Mother filed a Rule 10 application and requested a stay of the trial
court proceedings. Mr. Brooks then filed an amended complaint on the same day this Court
entered its stay of the trial court proceedings and directed Mother to obtain written orders
memorializing the chancellor’s oral rulings. Mr. Brooks’ amended complaint added
requests for the chancery court to enter “a legal finding that he is the father of the parties’
minor child” and to exercise jurisdiction to make an initial custody determination under
Tennessee Code Annotated section 36-6-216 of the UCCJEA. The trial court’s subsequent
written order denying Mother’s motion to dismiss included a footnote stating: “[Mr.
Brooks] has filed an amended complaint requesting a paternity determination. This matter
is not yet before the Court.” The chancery court repeatedly emphasized that it had, thus
far, only “assumed its authority” to enter a temporary custody order on an emergency basis
pursuant to Tennessee Code Annotated section 36-6-219. Thus, it found that Mother’s
argument about jurisdiction of parentage actions being exclusively in the juvenile court of
Shelby County “applied to a parentage action pursuant to Tennessee Code Annotated § 36-
2-307” but was not “germane” to the subject matter jurisdiction being exercised by the
court under the “emergency powers” of section 36-6-219. According to the chancery court,
“this case was not brought under Chapter 2 of Title 36,” Mr. Brooks’ “Complaint was
brought under Tennessee Code Annotated § 36-6-219.” The order states, “This Court
acquired jurisdiction under Tennessee Code Annotated § 36-6-219 by the emergency
nature of the issues brought before the Court[.]” The chancery court made clear that it had
“made no determination of parentage” and had not yet decided any issues regarding
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whether Tennessee was the child’s home state and whether it could exercise jurisdiction
under Tennessee Code Annotated section 36-6-216 to make an initial custody
determination.
We must bear in mind that “‘[f]or extraordinary appeals, the issues are limited to
those specified in this court’s order granting the extraordinary appeal.’” Culbertson v.
Culbertson, 455 S.W.3d 107, 127 (Tenn. Ct. App. 2014) (quoting Heatherly v. Merrimack
Mut. Fire Ins. Co., 43 S.W.3d 911, 914 (Tenn. Ct. App. 2000)).
Under the Rules of Appellate Procedure, the appellate court’s grant of
permission for an interlocutory appeal under Rule 10 does not transfer
jurisdiction over the entire case to the appellate court, as would normally
occur with an appeal as of right from a final judgment. Instead, with an
interlocutory appeal, the appellate court’s jurisdiction is limited to the issues
specified in the appellate court’s order granting permission for the appeal,
and the balance of the case remains in the province of the trial court[.]
Id. at 126. Although eleven issues were raised in Mother’s Rule 10 application, the limited
issue on which this Court granted the application was “Whether [Mr. Brooks] had standing
to file the December 10, 2020 ‘[Mr. Brooks]’s Complaint for Emergency Custody, For
Injunctive Relief, and to Set Child Support’ in Shelby County Chancery Court.” As
tempting as it might be to reach additional related issues, we conclude that the proper
course of action in this appeal is to vacate the trial court’s initial orders granting Mr. Brooks
relief on the basis of temporary emergency jurisdiction but remand for the trial court to
consider the remaining issues as they might relate to Mr. Brooks’ amended complaint in a
manner consistent with this Court’s ruling that the exercise of temporary emergency
jurisdiction was improper.
“[I]n cases wherein the initial complaint has been properly amended by the
plaintiff(s), this Court has looked to the factual allegations of the amended complaint when
making a determination regarding standing.” Bowers v. Est. of Mounger, 542 S.W.3d 470,
481 (Tenn. Ct. App. 2017). “Even if a question of subject matter jurisdiction [is]
implicated, [] when the original complaint is subsequently amended, . . . such amended
complaint becomes the operative pleading, which the court must review for jurisdictional
purposes.” Id. at 480-81. Here, Mr. Brooks’ amended complaint incorporated by reference
the allegations of his original complaint and did not add any additional allegations
regarding the child being present in the state at the time of filing or since, nor did the new
allegations show that Mr. Brooks had established his paternity or executed a voluntary
acknowledgment of paternity. As such, consideration of the amended complaint would not
alter our analysis of the issues discussed above, regarding Mr. Brooks’ standing or the
exercise of temporary emergency jurisdiction. However, the amended complaint seeking
a determination of paternity and an initial custody determination has been filed and must
be considered by the trial court on remand. We express no opinion as to whether the
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amended complaint was properly filed. However, the trial court erred in denying Mother’s
motion to dismiss without determining whether the amended complaint was the operative
pleading before the court. On remand, the trial court must consider whether Mr. Brooks’
amended complaint was properly filed. If so, it must also consider Mother’s remaining
arguments regarding the jurisdiction of the chancery court over parentage actions in light
of our holding that the court lacked jurisdiction under Tennessee Code Annotated section
36-6-219.
Given the limited issue in this Rule 10 appeal, we decline to consider Mother’s
request to reassign this case to a different chancellor at this juncture. However, Mother is
free to file a motion to recuse pursuant to Tennessee Supreme Court Rule 10B. See Bruce
v. Jackson, No. E2018-01997-COA-R3-CV, 2019 WL 2157938, at *7 (Tenn. Ct. App. May
17, 2019) (declining to consider an argument on appeal that the case should not be
remanded to the same trial judge where no Rule 10B motion had been filed and the issue
was not designated as an issue presented for appeal); Xcaliber Int’l Ltd., LLC v. Tenn. Dep’t
of Revenue, No. M2017-01918-COA-R3-CV, 2018 WL 4293364, at *17-18 (Tenn. Ct.
App. Sept. 10, 2018) (deeming a request for judicial reassignment on remand waived where
no Rule 10B motion was filed and the issue was not designated for review on appeal); In
re Alysia S., 460 S.W.3d 536, 577-78 (Tenn. Ct. App. 2014) (noting that the mother asked
this Court to require the appointment of a special judge on remand but declining to consider
whether the judge should be recused given the mandatory language of Rule 10B regarding
recusal motions); Blair v. Rutherford Cty. Bd. of Educ., No. M2012-00968-COA-R3-CV,
2013 WL 3833516, at *7 (Tenn. Ct. App. July 19, 2013) (“Plaintiff has requested that the
case be reassigned to a different judge on remand. In light of the adoption of Tenn. Sup.
Ct. R. 10 regarding motions to recuse, Plaintiff should address her concerns to the trial
court.”). We also decline to consider Mr. Brooks’ request, for the first time on appeal, for
a discretionary transfer of this case from chancery court to juvenile court pursuant to
Tennessee Code Annotated section 16-1-116. We likewise decline to express an opinion
as to Mother’s entitlement to attorney fees pursuant to Tennessee Code Annotated section
20-12-119. Mother can address this request to the trial court on remand.
Mother alternatively requested an award of attorney fees incurred in the trial court
and on appeal pursuant to Tennessee Code Annotated section 36-6-236 of the UCCJEA.
This statute provides:
§ 36-6-236. Award of necessary and reasonable expenses
The court may award the prevailing party, including a state, necessary and
reasonable expenses incurred by or on behalf of the party, including costs,
communication expenses, attorney’s fees, investigative fees, expenses for
witnesses, travel expenses, and child care during the course of the
proceedings. The court may assess fees, costs, or expenses against a state
pursuant to this part.
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Tenn. Code Ann. § 36-6-236. However, the UCCJEA also contains a second statute
addressing attorney’s fees, found at Tennessee Code Annotated section 36-6-223. It
provides:
§ 36-6-223. Declining to exercise jurisdiction; unjustifiable conduct
(a) Except as otherwise provided in § 36-6-219, or by other law of this state,
if a court of this state has jurisdiction under this part because a person seeking
to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall
decline to exercise its jurisdiction unless:
(1) The parents and all persons acting as parents have acquiesced in the
exercise of jurisdiction;
(2) A court of the state otherwise having jurisdiction under §§ 36-6-216--36-
6-218 determines that this state is a more appropriate forum under § 36-6-
222; or
(3) No court of any other state would have jurisdiction under the criteria
specified in §§ 36-6-216--36-6-218.
....
(c) If a court dismisses a petition or stays a proceeding because it declines to
exercise its jurisdiction pursuant to subsection (a), it shall assess against the
party seeking to invoke its jurisdiction necessary and reasonable expenses
including costs, communication expenses, attorney’s fees, investigative fees,
expenses for witnesses, travel expenses, and child care during the course of
the proceedings, unless the party from whom fees are sought establishes that
the assessment would be clearly inappropriate.
Tenn. Code Ann. § 36-6-223. The Official Comment to section 223 states, “The attorney’s
fee standard for this section is patterned after the International Child Abduction Remedies
Act, 42 U.S.C. § 11607(b)(3). The assessed costs and fees are to be paid to the respondent
who established that jurisdiction was based on unjustifiable conduct.” The existence of
this second statute within the UCCJEA has caused courts in other jurisdictions to examine
exactly what “proceedings” are being referenced by the first statute.
Like the language used in the Uniform Act and in other jurisdictions, Tennessee
Code Annotated section 36-6-236 authorizes an award of attorney fees incurred by the
prevailing party “during the course of the proceedings.” See Unif. Child Custody
Jurisdiction & Enforcement Act § 312. Notably, however, Tennessee’s version of the
UCCJEA provides that the court “may” award the prevailing party such fees and costs,
Tenn. Code Ann. § 36-6-236, while the Uniform Act provided that the court “shall” award
the prevailing party such fees and costs. Unif. Child Custody Jurisdiction & Enforcement
Act § 312.
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In Tyszcenko v. Donatelli, 670 S.E.2d 49, 53 (Va. Ct. App. 2008), the Court of
Appeals of Virginia considered a mother’s argument that the prevailing party statute
“applies to all proceedings under the UCCJEA,” while the father argued that it applied
“only to those proceedings under the UCCJEA that involve the enforcement of child
custody determinations.” The court acknowledged that the statute did not, “[o]n its face .
. . expressly limit its application to any particular proceedings.” Id. However, the court
found it necessary to look at the UCCJEA as a whole. Id. The court recognized that the
prevailing party statute was “not the only statute in the UCCJEA that permits a court to
award attorney’s fees and other costs to a prevailing party.” Id. The court noted the second
statute providing for an award of attorney fees in cases of unjustifiable conduct. Id. The
court reasoned that if the prevailing party statute applied to all proceedings under the
UCCJEA, as the mother asserted, a separate statute would not be needed to address attorney
fees in the particular circumstances described in the second statute. Id. at 54. Thus, under
the mother’s broad reading of the prevailing party statute, the second statute would be
superfluous. Id. To determine what “proceedings” were referenced in the prevailing party
statute, the court considered the structure of the UCCJEA and its separate articles,
explaining:
The UCCJEA comprises four articles. Article 1 sets forth definitions and
other general provisions. Article 2 defines the circumstances in which the
trial court may exercise jurisdiction concerning child custody
determinations. Article 3 establishes the procedures for the enforcement of
child custody determinations. Article 4 consists of miscellaneous provisions.
Id. Because the prevailing party attorney fee statute fell within Article 3, which addressed
recognizing and enforcing child custody determinations of other states, the court concluded
that the statute applied solely to enforcement-related “proceedings.” Id.Other courts have reached the same conclusion. See N.S. v. D.M., 21 Cal.App.5th
1040, 1050-51 (2018) (“On its face, this statute does not expressly limit its application to
any particular proceeding. But it cannot apply to all proceedings under the UCCJEA, as
that would render Chapter 2’s separate expense provisions superfluous. . . . The structure
of the statute indicates that section 3452 applies only to enforcement proceedings under
chapter 3.”); Delgado v. Combs, 314 Ga. App. 419, 431-32 (2012) (“In complying with the
mandate that we consider the need to promote uniformity of the [UCCJEA] with respect to
its subject matter among states that enact it, we, too, hold that OCGA § 19-9-92 applies
only to the prevailing party in an enforcement proceeding.”); Creighton v. Lazell-Frankel,
178 N.C. App. 227, 230 (2006) (“[Mother] did not seek the expedited enforcement of a
child custody determination; seek to register an out-of-state order; or otherwise utilize the
remedies set forth in Part 3 of the UCCJEA. Consequently, Part 3 was not implicated, and
the allowance [of attorney fees to the prevailing party] set forth in G.S. § 50A-312 is
inapplicable.”); In re Ruff, 168 Wash.App. 109, 124 (2012) (finding the Virginia court’s
decision persuasive and narrowly reading the prevailing party statute).
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Tennessee’s statutory version of the UCCJEA is not clearly divided into separate
articles, instead spanning consecutive sections from Tennessee Code Annotated section
36-6-201 to -243. However, the official comments to the statutes continue to refer to
various “articles.” See, e.g., Tenn. Code Ann. § 36-6-227 Official Cmt. (“The remedies
provided by this article for the enforcement of a custody determination will normally be
used. This article does not detract from other remedies available under other local law.”).
In Moorcroft v. Stuart, No. M2013-02295-COA-R3-CV, 2015 WL 413094, at *8 (Tenn.
Ct. App. Jan. 30, 2015), we examined a statutory reference in the UCCJEA to “enforcement
under part 3 of this chapter,” Tenn. Code Ann. § 36-6-205(4), and explained that
Tennessee’s version of the UCCJEA has no “Part 3.” We noted that “[o]ur Legislature has
directed us to seek guidance from the Model Act and its commentary.” Id. “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[.]” Id.
Although Tennessee’s version has no designated “part 3,” we explained that its version
“does have substantially similar provisions as Article 3 of the Model Act, but they are
located at Tennessee Code Annotated §§ 36-6-226–241.” Id. As such, even though the
statute referenced “enforcement under part 3 of this chapter,” it was “meant to reference
Tennessee Code Annotated §§ 36-6-226–241.” Id. at *9. The statute providing for attorney
fees to the prevailing party, section 236, falls within this range.
We do recognize that Tennessee’s version of the prevailing party statute provides
that a court “may” award attorney fees to the prevailing party, Tenn. Code Ann. § 36-6-
236, while the Uniform Act and other state counterparts discussed above provided that the
court “shall” award fees to the prevailing party. Because of that difference, Tennessee’s
two statutes could be interpreted in a manner that would allow a discretionary award under
section 236 to any prevailing party under the UCCJEA and a mandatory award under
section 223 in the case of unjustifiable conduct. In that case, section 223 would not be
rendered superfluous. However, the fact remains that the Uniform Act provided for a
mandatory award under both sections, the Tennessee version was patterned after the
Uniform Act, and courts construing the language used in the Uniform Act have held that
the prevailing party statute was only meant to apply in the context of Article 3 enforcement-
related “proceedings.” We will similarly construe the Tennessee statute in order to
promote uniformity under the UCCJEA. See Tenn. Code Ann. § 36-6-242 (“In applying
and construing this uniform act, consideration must be given to the need to promote
uniformity of the law with respect to its subject matter among states that enact it.”); see
also Staats, 206 S.W.3d at 547 (noting the UCCJEA was developed “with the goal of
allowing the courts to develop a new and truly uniform body of decisional law to govern
interstate child custody disputes”).7 As such, the statute cited by Mother is inapplicable to
7
We also note that the Official Comment to Tennessee Code Annotated section 36-6-236 states, in
part, “This section implements the policies of Section 8(c) of Pub. L. 96-611 (part of the PKPA).” (emphasis
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this case, and her request for attorney fees is denied.
III. CONCLUSION
For the aforementioned reasons, we vacate the chancery court’s orders awarding
custody and related relief to Mr. Brooks based on our conclusion that Mr. Brooks lacked
standing to seek such immediate relief in the absence of any establishment of his paternity,
and the trial court lacked temporary emergency jurisdiction. The vacated orders include
the fiat and related restraining orders signed on December 10, the December 22 order
issuing injunctive relief and transferring custody, and the February 1 order granting Mr.
Brooks’ motion to compel disclosure of the location of Mother and the child. We reverse
the chancery court’s order denying Mother’s motion to dismiss in part, to the extent that
the chancery court found that it had temporary emergency jurisdiction under Tennessee
Code Annotated section 36-6-219. Thus, the portions of the order addressing Mother’s
arguments regarding subject matter jurisdiction and dismissal for failure to state a claim
are also reversed due to the chancery court’s rejection of Mother’s arguments based on its
claim of authority pursuant to section 36-6-219. The chancery court is directed to consider
those issues on remand, in addition to the propriety of the amended complaint, in a manner
consistent with this opinion. Costs of this appeal are taxed to the appellee, Dillon Brooks,
for which execution may issue if necessary.
added). The Parental Kidnaping Prevention Act (PKPA), 28 U.S.C. § 1738A, “imposes a duty on the States
to enforce a child custody determination entered by a court of a sister State if the determination is consistent
with the provisions of the Act.” Thompson v. Thompson, 484 U.S. 174, 175-76 (1988). “Congress’ chief
aim in enacting the PKPA was to extend the requirements of the Full Faith and Credit Clause to custody
determinations[.]” Id. at 183. See also Tenn. Code Ann. § 36-6-227 Official Cmt. (“Enforcement of
custody determinations of issuing States is also required by federal law in the PKPA, 28 U.S.C. §
1738A(a).”).
The subsection cited by the Official Comment, Section 8(c) of Pub. L. 96-611, provided that:
In furtherance of the purposes of section 1738A of title 28, United States Code [this
section], as added by subsection (a) of this section, State courts are encouraged to--
...
(2) award to the person entitled to custody or visitation pursuant to a custody determination
which is consistent with the provisions of such section 1738A [this section], necessary
travel expenses, attorneys’ fees, costs of private investigations, witness fees or expenses,
and other expenses incurred in connection with such custody determination in any case in
which--
(A) a contestant has, without the consent of the person entitled to custody or visitation
pursuant to a custody determination which is consistent with the provisions of such section
1738A [this section], (i) wrongfully removed the child from the physical custody of such
person, or (ii) wrongfully retained the child after a visit or other temporary relinquishment
of physical custody; or
(B) the court determines it is appropriate.
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_________________________________
CARMA DENNIS MCGEE, JUDGE
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