### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE CHARLES KENNETH BRANCH v . VIRGINIA LOUISE THOMPSON An Appeal from the Circuit Court for Robertson County No. 7555 The Honorable Carol Catalano, Chancellor, sitting by interchange

No. M1998-00511-COA-R3-CV Decided July 7, 2000

In this case, the minor children of the parties have been declared dependent and neglec ted in juvenile court, and custody was awarded to Mother. Subseque

ntly, the parties w

ere divorced in circuit court, and Mother was awarded custody and Father was ordered to pay child

support. Mother filed a petition in circuit court to hold Father in contempt for his fai lure to pay chil d support, and Father filed a cross petition seeking, among other things, to change custody. At the conclusion of an evidentia

ry hea ring, the circuit court awarded custody of the children to Father. Mother has appealed, andwe vacate the order changing custody because of lack of subject matter jurisdiction.

Te nn. R. App. P. 3, Appeal as o f Right; Judgment of

the Circuit Court

is Vacated an d Remanded.
C RAWFORD , P. J., W.S., deli vered the opinion of the court, in which H IGHERS , J., and F ARMER , J., joined. R. Eddie Davidson, Nashville, for Defendant-Appellant Charlotte U. Flemming, Springfield, for Plaintiff-Appellee
OPINION Defendant,

Virginia Louise Thompson (Mother), ap peals the order of the circuit court awarding custody of the parties’ two minor children to plaintiff, Charles Kenneth Branch (Father). Mary Frances Bra

nch and Elizabet

h Louise Branch, the twin daughters of Virginia Louise Thompson and Charles Ke n neth Branch were born on August 24, 1994. On August 1, 1995, the Juvenile Court of Robertson C

ounty entered a c

onsent decree f

inding that th

e childre n were dependent

and neglected, and that theysuffered from shaken baby syndr

ome within a reaso

nable degreeof medical certainty. The juvenile court further found that Michelle Minnis, Ben Thompson, Virginia Thompson’s minor son from a previous marriage, and Virginia Thompson each had sole accessto the twins when the injuries occurr

ed. However, no

determin ation was made as to who caused the injury. Upon a f

inding that Virginia

Thompson posed no th

reat to the safety of the-2-

children, custody of the children was immediately returned to Mother. The consent

decree provided in pertinent part:

3. Virginia

Thompson will closely monitor contact between her son, Ben Th ompso n, and her daughters, Mary F. Branch and Elizabeth L. Branch. Ben Tho

mpson will continue i

n therapy for so long as his mother and therapist deem this appropriate. Ben Thompson will not be permitted unsupervisedaccess to the children. 4. The Departmen

t of Human Service

s and Virginia Thompson joint ly agree to super vise any child car

e arrangements ma de by Virginia Thompson. The Department of Human Services shallbe responsible to inform Ms. Thompson of any adver se knowledg e it gains concerning any child care provider for the children and will take reasonable precautions to assure the safety of the childr en at any licensed day care facility. The Department of Human Services will make visits with the regular child care provider at least quarter ly in order to compl y with this provision.

Virginia Thompson will seek the advice of a DHS Social Worker any time she has any suspicion that the girls are being either neglected or abused. The DHS wi ll monito r the family for a period of one year from the date of this decree.
The juvenile court’s consent decree contains a hand written addition by Judge Glover, who signed the decree, whi

ch reads:
7. The Mother, Virgi nia Thompson, is

not to rem ove the aforesaid minor children from the Stat e of Tennessee until a final hearing is held in pending divorce action.
Mother and Father were

divorced pursuant to a divorce decree entered October 21, 1996 by the Robertson County Circu it Court . Sole care, custody, and control of the minor children, Mary andElizabeth, wa s granted to Mother. On March 3, 1998, Mother filed a petition for contempt alleging that Father failed to pay child suppo rt of $570.00 per month and medical expenses as ordered by the final decree of divorce. In her petition, Mother also sought a judgment in the amount of $2,500.00 for furniture which she alleged Father allowed to ruin. Father filed an answer

and counter

petition denying that he was in contempt of court and averring that since the entry of the final decree of divorce, there had been a substantial and mater ial change of circumstances which justified reducing child support. Father further averred that since the entry of the final decree of divorce, there had been substantial and material changes of circ umstance such that a change of sole custody from Virginia Thompson to Charles Branch is in the best interests of the minor children. F ather alleged specifically that Mother continued to allow Ben Thompson unrestricted

access to the chi

ldren in direct vio

lation of the juven

ile court’s consent decree of August 1, 1995.-3-

A tri al on the merits was hel d on August 13, 1998.

Mother testified t

hat she lived in Nashville and was employed with the Robertson County Boardof Education as a teacher. She stated that the children exhi

bited abnormal be

havior after the

ir visits with

Father, who resides in Port St. Joe, Florida Father testified that he complaine d to DHS because Mother continued to allow Ben Thompson to remain unsupervised with the minor children, in violation of the consent decree issued by Robertson County Juvenile Court. Father testified t hat he requested

a change in custo

dy because Mother had shown a strong

desire to preven

t him and his family members from seeing the children. Father also testified that he felt that the children’s health and safety were being jeopardized and that his family could provide a more nurturing environment. He stated that he was concerned that the children would be abused by the perpetrator that abused them before. On October 16, 1998, the court entered an orde

r incorporating t

he court’s finding of facts, as stated from the bench, which found a material change of circumstance and changed sole

custody of the children from Mother to Father. The court further ordered that Mother pay ch

ildsupport to Father in the amount of $659.00 per month, except during her summer visitation period. The court didnot find Father in contempt for non-payment o

f the medical exp

enses paid by Mothe

r, because of her failure to establish the expense. The court ordered Mother to provide major medical insurance for the minor children

and ordered tha

t the parties sp

lit any exp enses not covered. Father was awarded a judgment of one-half of his entire attorneys fee in the cause, in the amount of $1,732.50. Father was ordered to pay Mother $300.00 per month toward his back due child support obligation of $3,210.00, with accrued simple interest at the rate of 12% p er annum begin ning September 1, 1998. It is from this order that Mother appea

ls, raising five issues for review as stated in her brief:
I. Whether

the trial court lacked

subject matter jur

isdiction to

make a custodial determination. II. Whether

the trial court abused its discretion in awarding custody to the father in view of mother’s bundle of custodial rights which oper ate aga inst third persons. III. Whether the trial court abused its discretion in its apparent punitive change of custody decree from Mother to the Father. IV. Whether

the trial court ab

used its discretio

n in faili ng to conduct a comparative fitness analysis and/or to apply T.C.A. § 36-6-106. V. Whether

the tr ial c ourt erred in and

/or abused its disc

retion in failing to include Father’s

deposition in the re

cord in this appea

l.
We address only issue I herein, as our ruling on that issue renders iss

ues II - V moot. Thi

s issue is controlled by T.C.A. § 37-1-103 (Supp. 19 99) which provide

s in pertinent par

t: 37-1-103. Exclusive original ju risdiction.

- (a) The juvenile court has exclusive origina

l jurisdiction of the

following procee

dings, which are gover

ned by this part: (1) Proceedings in wh ich a chi ld is alleged to be d elinquent, unruly or dependent and ne

glected, or to hav

e committed a juven

ile traffic-4- offense as defined in § 37-1-146;

* * * (c) When jurisdiction has been acquired under the provisio

ns of this part, such jurisdiction shall c ontinue until

a person reaches the age of eighteen (18) , except that the court may extend jurisdiction for the limited purposes set out i n § 37- 1-102(b)(4)(B) until the person reaches the age of nineteen (19).

* * * Although a child custody decree in a divorce case remains in thecontrol of the divorce court andsubject to later modification by virtue of T.C.A. § 36-6-101 (Supp. 1999), the statute explicitly states: 36-6-101. Decree for custody and support of

child - Enforceme

nt

- Juvenile court jur

isdiction - Presumpt

ion of pa renta l fitness - Educational seminars

.

* * * (c) Nothing in this chapter shall be cons trued to alter, modify or restrict the exclusive jurisdiction of the juvenile

court pursuant to § 37-1-103.

* * *
In State of Tennessee

Dept. of Huma

n Servi ces v. Gouvitsa , 735 S.W.2d 452 (Te nn. Ct. App. 1987), this Court held that after a petition is filed in juvenile court to declare childre n dependent

and neglected, thejuvenile court has exclusive jurisdictionregarding the custody of the children and any subsequent order concerning custody entered by the court having jurisdiction over the original divorce proceeding is void. To th e same effect, see Kidd v. State ex . rel Moore , 207 Tenn. 244, 338 S.W.2d 621 (1960) and Marmino v. Marmino, 34 Tenn. App. 352, 238 S.W.2d105 (1950).
Father

asserts that the juvenile court matter w as fully disp osed of by entry of the consent decree; therefore, the juvenile court no longer had the exclusive subject matter jurisdiction to make the custody determina

tion. We must r

espec tfully disagree. In Green v. George , 99 WL 252710 (Tenn. Ct. App. 1999), this Court stated:

Section 37-1-103 sets forth only one manner by w hich the juvenile court’s exc lusive jurisdiction may be relinquished, that being the child’s attainment of

the age of majority. See Tenn.Code. Ann. § 37--5- 1-103(c).
Id. at **4.
Father next asserts that the ju venile judge, by a dding the handwrit

ten paragraph in

his ordered, expressly defer

red subject m

atter jurisdiction to the t rial court. We mu

st respectfully disagr ee. Virtually the same argument was made before this Court in Hicks v.Hicks , 19 94 W L 108896, No. 01A01-9309-CH-00417 (Tenn. Ct. App. 1994), where the father asserted that the

order transferring the case for consolidation with the chancery court proceeding co nstituted the consent of the juvenile

court for the chancery court to take jurisdiction. In response to the father’s assertion, we said:
This precise question was addressed by the court in S impk ins v.

Greer , No. 01A-01-9202-CH00 60, 1993 WL 18311 (T enn. App. M.S. jan. 29, 1993). In Greer , Judge Cantrell, speaking for the Court, said:
It is clear that the parties can not confer subject matter jurisdic tion on the court by consent. See Curtis v. Garrison, 2 1 1 Tenn. 339, 346, 364 S.W.2d 933, 9 36 (1 963); James v. Kennedy , 174 Tenn. 591, 595, 129 S.W.2d 215, 216 (1939). W e think it is equally clear that a court

cannot confer subject

matter jurisdiction on another court. Tenn. Const. art. 6, § 1 grants the legislature the power to determine how many and what kinds of courts are required for the administration of justice and the power to fix the limits of each court's jurisdiction. S ee State ex rel. Ward v. Murrell, 169 Tenn. 688, 692, 90 S.W.2d 945, 946 (1936). Courts possess "only such jurisdictional powers as are directly, o r indirectly, expressly or by implication, conferred upon [them] by the constitution or legislation of the sovereignty on behalf of which [they] function." 20 Am.Jur.2d Courts § 91 (2d ed.1965); see also Coonradt v. Sailors , 186 Tenn. 294, 305, 209 S.W.2d 859, 863 (1948); McHenry's Lessee v. Wallen, 10 Tenn. 441, 444 (1830). (Emphasis in original). Simkins, 1993 WL 18311 at *3. Hicks, WL 108896 *2 (Tenn. Ct. App. 1994).
The Robertson County Circuit Court has no jurisdiction o ver the issu e of custody of the children; therefore, the

order appeale

d from as it deals with custody i s void. State of Tennessee Dept. of Human Servic

es v. Gouvitsa , 735 S.W.2d 452, 457 (Tenn. Ct. App. 1987). Accordingly, the order

as it deals with custody and the obligations imposed upon Mother as the noncustodial pare

nt is vacated. The

previous order o

f the circuit cour t establishing the obligations of Father

as the noncustodial parent shall remain in effect. The case is remanded to the-6-

circuit court for such further proceedings as are necessary. The question of custody rema ins in the J uvenile Court of Robertson County. Costs of appeal are assessed against the appellee, Charle s Kenneth Branch.