# FILED
December 5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

STATE OF T

ENNE SSEE o

/b/o ) JUANITA WHITEHEAD, ) ) Plaintiff/Appellee, ) Wayne Chancery ) No. 8006 ) VS. ) Appeal N o. ) 01A01-9511- CH-00538 ) MATTIE (WHITEHEAD) THOMPSON, ) ) Defenda nt/Appella

nt. )

APPEAL FROM THE CHANCERY COURT FOR WAYNE COUNTY

AT WAYNESBORO, TENNESSEE THE HONORABLE JAMES L. WEATHERFORD, CHANCELLOR
For Plaintiff/Appellee : For Def endant/Ap pellant : John Knox Wa

lkup David Ko zlowski Attorney General and Reporter Columbia, Tennessee James H. Tucker, Jr. Assistant Attorney General



## REVERSED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 The Smiths’ petition does not technically comply with Tenn. R. Juv. P. 9 because it does

notallege s pecific ally that t he child was “dependent and neglected.” How ever, the substance of the petition indicates that the Smiths were asserting that the child was dependent

and neglected bec ause Ms. Thompson was not providing proper care. See Tenn. Code Ann. § 37-1-102(b)(12)(C) (1996). -2- 

## O P I N I O N

This appeal inv olves a tri al court’ s authority to enter a nd enforce

a child support award when procee dings involvingthe child wer e already pending in another court. After the Wayne

County Juveni le Court ga ve custody of

the child tothe State in a dependent and neg lect proceeding, the Department of Human Services filed separate petitions in the Chance r y Court for Wayne Cou nty seeking t o require the child’s divorced pa

rents to pa

y child suppor

t. The t rial cour t directe d both paren

ts to pay child su

pport to the

State. After the State ’s repea ted effor ts over fiv e years to require the mother

to pay child

support, s he questione d the trial court’s subject matter jurisdicti on because t h e dependen t and negle ct procee ding was st ill pending in

the juvenile c o urt. Th e trial c ourt denied the mother ’s motion to dismiss, a nd on this ap peal, the mother

renews her claim

that the tr

ial court s hould have de ferred to th e juv enile court. We agree and, therefore, reverse the order denying the mother’ s motion to dism

iss.
I.
MattieElla WhiteheadThompson a nd Jerry Wayne Whitehead were married in 1979. Their only child, a daughter, was born in Oc tober 1981. In April 1989, the Chancery Court for Wayne County award ed Ms. Th ompson a divorce, granted her custo dy of her dau ghter, a nd directe d Mr. Whitehead topay child su pport. Ms. Thompson later remarried for the fourth time.
On October 2, 19 90, Buddy R. Smith, Ms. T homps on’s son from an earlier marriage, and his wife filed a petition f or tempor ary custody

in the Juvenil e Court fo r WayneCounty alleging that Ms. Thompson was endangering his half-sister’s welfare by not providing her with proper care. 1 Three d ays later , the Smi ths, Ms. Thompson, and Mr. Whitehead executed and filed a consent order in t he juvenile

court per mitting t he Smiths to take temporary c ustody of the child. L ess than one

year lat er, Ms. Thompson

filed her own petiti on in thejuvenile court alleging that the Smiths were2 These petitions have not

been inc luded in

the appellate record. Based on the repr esentation in the part ies’ bri efs, we

presume that the D epartme

nt had sta nding to as sert thes e support claims because the child had been receiving AFDC support and because Ms. Thompson had a ssigned her support rights to the state a s required by federal and state law. See 42 U.S.C. § 602(a)(26)(A) (1988); Tenn. Code Ann. § 71-3-124(a) (Supp. 1997). -3- neglectingher daugh ter. On November 1, 1991, the juvenile court entered an order finding the child tobe depende nt and negle cted and pl acing her in the custo dy of the Department of Human Services. The child has been in foster care ever since.
Soon af te r the juvenile court p laced the child with

her half -brother , the Departm ent filed sepa

rate peti tions in the chancer y court see

king to require both Ms. Thompson

and Mr. W

hitehead to pay child support. 2 On Novem ber 8, 1990 , the chancery c ourt entered separate orders against Ms. Thompson and Mr. Whitehead directingthem to pay

the Depa rtment $25 per week in ch ild supp ort. On at least f our occasions during the n ext four year s, the Department returned to the chancery court seeking orders directing Ms. Thompson to continue to pay her support and to make up for arrearag es. On each occasion, the chancery court ente red an ord er resolv ing the issues raised by the

petition.
On April 19, 1995, Ms. Thompson, now being represented by an attor

ney with the Legal S ervices o f South Ce ntral Tennessee, moved to dism iss the pendi ng “child support enforce ment matt er” in ac cordance

with Te nn. R. Civ. P. 12.02 (1) and 12.08 on the grounds t

hat the cha

nc ery cou rt did not have jurisdiction to address support matters because t

he depende nt and negle ct procee ding was st ill pendin g in the j uveni le court. O n June 12, 19 95, the ch ancery c ourt enter ed an orde

r denying the mot ion on th e ground tha t it had auth ority to ord er Ms. T hompson to pay

child support “even while thedependent/ neglect c ase is pend

ing in the Juvenile Court

for Wayne County.” Ms. Thompson has appealed from this order.

II.
The sole question before us on this appeal is whether the chancery court has authorityto order M s. Thomps on to pay child su pport. W hile undoubte dly the-4-

chancery court has s ubject ma tter juri sdiction ove

r child suppo rt claim s in ge ne ral, itd id not ac quire juri sdiction in t his case be cause the

juvenile c ourt, a c ourt with concurrent jurisdiction, had already acquired jurisdiction over the case.
A.
The concept o f j urisdiction involves a court’s authority to adjudicate a particular controve rsy. See Kane v . Kane , 547 S.W.2 d 559 , 560 (Tenn. 1977). In order to acquire jurisdiction, a court must have jurisdiction not only over the parties but also over t

he subject matter of

the pr oceeding . The concept of subject matter jurisdicti on concern s a particular court’s authority to hear a particular type of case. See Meigha n v. U.S. Sprin t Comm. Co. , 924 S.W.2d 632, 639 (Tenn. 1996); Turpin
v. Conner Bros. E xcavating C

o. , 761 S.W .2d 296, 29 7 (Tenn. 1988). It relates to the nature of the ca

use of act ion and the

relief soug ht, see Landers v. Jones , 872 S.W. 2d 674, 675 (Tenn . 1994), and can onl y be conferr ed by theConstitution of Tennessee or by statu te. See Kane v. Kane , 547 S.W .2d at 560; Brown v. Brown , 198 Tenn. 600, 618-19, 281 S.W.2d 492, 501 (1955).
When more than one court has been given jurisdiction to adjudicate a particular type of controversy, subject matter jurisdiction may also be inf luenced by

matters of comity and judicial efficiency. Th us, when two courts have concurrent subject matter juri sdiction, the first

court to ac quire juri sdiction ove r a parti cular ca se take s exclusive jurisdicti on to end the mat ter. See Ame rican Lava Corp. v. Savena , 476 S.W.2 d 639, 640 (T enn. 1972) ; Robinson v. Easter , 208 Tenn. 147, 149 , 344 S.W.2 d 365, 366 (1961); Wilson v. Grantham , 739 S.W.2d 776, 777 (Tenn. Ct. App. 1986). The actions of

a court tha

t attempts to exerci se jurisdiction over a case after another courtwith conc urrent

jurisdic tion has already exe rcised jur isdictio n are nulli ties. See State v. H azzard, 743 S.W.2d 938, 941 (Tenn. Crim. App. 1987).
Theseprinciples have been applied to situations where a court of record has attempted to act af

ter a juve nile cour

t had alre ady exerc ised jurisd iction. T

he Tennessee Supreme

Court has h eld tha

t a j uvenile cou

rt that fi nds a juvenil e to be dependent

retains jurisdicti on over the child until its majority, and no other court may issue custody or a

ny other type

of order regardin g the child w ithout the c onsent of the-5-

juvenile court. See Kidd v. St

ate ex. rel. Moo re , 207 Tenn. 244, 251 -252, 338 S .W.2d 621, 624-25 (1960). Using similar reasoning, this court has determined that a court of record did not have jurisdiction to render custody orders with rega rd to children that were a

lready the subject of

a dependen

tand neglect pr

oceeding pending in the juvenile court wit

hout the juve nile court ’s consent

. See A rnold v. G ouvitsa , 735 S .W.2d 458, 461-62

(Tenn. Ct. App. 1987). W e percei ve no reas on preventi ng t h e applicati on of these

precede nts to child s upport proc eedings.

B.
Both the chanc ery court

and the juvenile court

have subjec t matter

jurisdicti on to render child support orders in the proper circumstances. Chancery courts der ive their authority f

rom their divorce ju

risdiction. See Tenn. Code Ann. §§ 36-4-102(b), 36-5-101 (a)(2)(A) (1996 & Supp . 1997). Juvenile c ourts deri ve their a uthority fr

om their jurisdicti on over depen dent and n eglect pro ceedings

. See Tenn. C ode Ann. §§ 37-1-104(d)(1), -151(a) ( Supp. 1997) . Howe ver, a j uvenile cou rt’s autho rity to require a parent to pay child suppor t is limite d to circumstances where another court withconcurrent jurisdiction has not prev iously ord ered the p arent to pa y child support
. See Tenn. Code Ann. § 37-1-151(b)(2).
The outcome of

this appea

l hinges on the

answers to the fol lowing two questions: did the juvenile court have jurisdiction to order Ms. Thompson to pay childsupport as t

he result o f the fili ng of the de pendent and

neglect pr

oceeding a

nd, if the juvenile court acquired jurisdiction, did it authorize the chancery cour t to proceed with the D epartme nt’s petiti on to requir e Ms. T hom pson to p ay child support? Under the facts in this record, we find that the j uvenile c ourt acquired jurisdicti on to enter c hild support orders and that it has not authorized the chancery courtto take jur

isdiction ove

r the De partment’ s child suppor

t petition w ith regar

d to Ms. Thom

pson.
When the Smiths fi led their dependent a nd neglect petition in

October 1990, no other cour

t had enter

ed an orde

r direct ing Ms. T

hompson to pay

chil d support

. T he only extant ord er was t he chance

ry court’ s order in t

he divorce

proceedi ng directingMr. Whitehead to pay child support to Ms. T hompson. T

hat order did not3 Of course, the chancery court had jurisdiction to consider the Department’spetition to require Mr. Whitehead to pay child support because the chance ry court was the f irst cour t to require Mr. Whitehe ad to pay child support and because the juvenile court did not have jurisdiction over Mr. Whitehead’s child support obligation. -6- involve Ms. Thom

pson, and th e facts t

hat later gave rise to the Smi ths’ depend ent and neglectproceedi ng were n ot at issue i n the divorc e procee ding. Thus, once the juvenile court acq

uired subj ect matter jurisdiction over the dependent and neglect petition, it had the jurisdiction and duty to enter child suppor t orders in

accordance with Tenn. Code Ann. § 37-1-151(b)(2).
Once the juvenile court acquired jurisdiction in the dependent and neglect proceedin g, it ret ained juri sdiction ove r all rel ated matt

ers involvin g the child until the child’ s majority . Since the recor d contains noindication that the juv enile court authorized the chanc ery court to enterta

in the Dep artment’ s petition torequire Ms. Thompson

to pay child

support, we conclude that the chancer y court shoul d not have entertained this petitio n. 3 Because the chanc ery court

did not have

s ubject matter jurisdicti on overthe Depa rtment’s request f

or child supp ort from

Ms. Thom

pson, all of its orde

rs with r egard to he

r child suppo rt are vo id.
Our determin ation that the chancery court did not have subject matter jurisdiction to order Ms. Thompson to pay child suppor t does not necessarily mean that Ms. Thompson is entitled torecover the child suppor

t payments she has alr

eady made. P arents ha

ve a common-law obl igation to support their mino r children

. See Smith v. Gore , 728 S.W .2d 738, 75 0 (Tenn. 1987); Hall v. Jordan , 190 Tenn. 1, 11, 227 S. W.2d 35, 39 (1950). The paym ents that M s. Thomps on has alre ady made fulfillthis common -law obli gation, and there fore, sh e is not entitled to recover them. However, as a prospe ctive mat ter, the Department may no longer rely on the chancery court’s November 8, 1990 o rder as a basis to dem and child sup port from Ms. Thompson. It must ei ther seek an awar d for child

support fr

om the juvenile

court or itmust obtain the juvenile c ourt’s aut horization

to procee d against Ms . Thompso n for child suppor

t in the cha

ncery cour

t.
III.-7- We vacate t

he order d enying Ms. Thompson’ s motion to dis miss and remand the case to the trial court for further proceedings consistent with this opinion. We also tax the costs of this appeal to the State of Tennessee.

_________________

_____________ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

_________________

______________ SAMUEL L. LEWIS, JUDGE

_________________

______________ BEN H. CANTRELL, JUDGE