# FILED
April 28, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON BARRI JO (GEORGE) GREEN, ) ) Plaintiff/Appellant, ) Gibson Chancery No. 8852 ) VS. ) Appeal No . 02A01-9711-CH- 00279 ) LANNY DEA

N GEORGE, ) ) Defendant/Appellee. )
APPEAL FROM

THE CHANCE RY COURT O F GIBSON CO UNTY AT TRENTON, TENNESSEE THE HONORABLE GEORGE R. EL LIS, CHANCELLOR

BOBBY A. M cGEE Linden, Tennessee Attorney for Appellant

J. MARK JOHN SON Trenton, Tennessee Attorney for Appellee

REVERSED, VACA

TED, AND RE MANDED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . DAVID R. FA

RMER, J. Barri Jo Green (“Barri”) appeals from the Gibson County Chancery Court’s deni al2

of her motion to dismiss custod yproceedings that were brought in the chancery court after dependent and neglect proceedings were co mme nced in the Gibson County Juvenile Court. Based upon the followi ng, we reverse.

Facts and Procedural His tory

On August 3, 1990, Barri filed a Complaint for Absolute D ivorce against Lanny Dean George (“Lanny”) i n the Gibs on Count y C hancery Court, after having been married to Lanny since August 1986. In Barri’s complaint, she sought custody of and child support forthe parties’ one minor chi ld, Samantha, who was then an infant. On August 16, 1990, the chancery court entered an Agree d Order for Temporary Custody and Child Support, wh ich awarded Barri “temporary c ustody and temporary chi ld support pending a full hear ing of this cause.”

Thereafter, on March 4, 1991, Bar ri’s action for

divorce was heard by the cha ncerycourt. The chancery court entered a judgment awarding Barri an abso lut e divorce o n May 7, 1991. By agr eement of the parties, the court’s order further aw arde d custody of and child support for Samantha to Barri.

On April 19, 1993, Lanny petitione d the chancery court to modify Samantha’s custody so as to award Lanny custody. He also separately fileda motion for “temporary custody” of Samantha. He based his petition upon the assertion that Samantha had been “severely

whipped and/or beaten” w hen Lanny

last obtained the child for visitation, and that Samantha had also been beaten on previous occasions. This, he

asserted, constituted a sufficientchange of circumstances to w arrant a change of custody fr om Barri to L a nny. On the same date, April 19, 1993, the chancery court entered a temporary restr aining order that awarded temporary custody to Lanny and prohibited Barri from attempting to obtain po ssession of Samantha pending a final hearing on Lann y’s petition to change cu stody

.
Concurrent

with the filing of Lanny ’s petition and motion in the G ibson County Chancery Court, how

ever, the State of Tennessee Department of Human Services (“the State”) commenced dependent and neglec t proceed ings in the Gibson Co unty Juvenile3

Court by filing a petition fortemporary custody. The S tate’s petition alleged that Samantha
was dependent and neglected and sought “an immediate protective custody order placing the tempora ry care, cus tody, and cont rol” of Sa mantha with eithe r the Stat e or with La nny. Accordin gly, the juvenile court judge signed a pr otective custody order on April 19, 1993, that awarded temporary car e and custody to the State for foster care with L anny. Moreover, the juvenile court appoi nted a guardian ad litem for Samantha. The petition and protecti ve custody

order were both filed w ith the juvenile court cl erk on April 20, 1993. On April 21, 1993, the juvenile cour t held a preliminary hear ing on th e State’s petition, whereafter, by order

entered May 10, 1993, it aw arded temporary custody of Samantha to the State, though Samantha’s actual physical custody w

as to remain with Lanny

.
On March 15, 1994, the juveni le c ourt entere d a consent order, which stated the following: The State . . . consents to both temporary legal and physical custody of . . . Samantha . . . being aw arded to the father, Lanny Georg e. I t is ther efore ORDERED that temporary legal custody of . . . Samantha . . . shall be divested out of the State . . . and that both the temporary legal and phy sical custody of

said child shall be award ed to and vested in the child’s natural father, Lanny Georg e. Thereafter, the order setforth an arrangement for superv ised visitation by

Barri, and provided that “the Court shall review this matter on . . . August 5, 1994 . . . .” Lastly, the order expres sly es tablis hed that

any fin al adjud icator

y decis ion of whe ther Samantha is dependent and neglected shall be res erved. The matter

was thereafter revie

wed by the juvenil e co urt on August 5, 1994, at which time the court entered another interlocut ory order and continued the matter further. The m atter was again brought before the juvenile court on September

11, 1995, after which the juv enile court entered an order, on January 17, 1996, that stated, [T]he Court finds that while this is taken as disposition on a findi ng of dependent and neglected, the attenuated process of these hearings must be considered. In weighing hours of testimony given the Court finds that it is in the bes t interest of the minor child that custody be returned to the mother and all incidents relating to visitation, etc. in effect by the Chancery Court are to be followed. It is relevant to note, however, that the matter before this Court does not inv olve an y appeal from the juvenile court’s January 17, 1996 award of custody to Barri.4

On September 15, 1995 (after the September 11 juvenile court hearing, but before the entry of the juvenile court’s J anuary 17 order), Lanny filed a petition for change of custody in the chancery

court, wherein he soug ht permanentcustody of Samantha. This petit ion furt her sought a restraining order to prevent Barri from interfering with Lanny’s custody. On the same date, September 15, 1995, the c han c ery court entered such a restrainingorder. Shortly ther eafte r, on Se ptember 19, 1995, Barri filed a moti on to dismiss with the chancery c ourt, asserting, “That

the provisions of T.C.A. 37- 1-103, clearly show that the exclusiv e original jurisdiction over . . . Samantha . . . shall remai n with the Juvenile Court until the child reaches the age of nineteen (19) years.”

On March 14, 1997, the chancery court entered an interlocutory order

that awarded temporary custody of Samantha to Lanny. On A pril 14, 1997, Barri moved for a Rul e 9 interlocutory appeal by permission from the trial court, seeking

to appeal from theMarch 1 4, 1997 interlocutory order. See Tenn. R. App. P. 9. On September 9, 1997, at the direction of the chancellor, Barri fil ed a “renewed” motion to di smiss, though no written order had yet been entered disposing of her prior motion to dismiss. This motion to dismiss again sought dismissal of Lanny’s petition for change of custody, wherein he s ough t permanentcustody of Samantha, based upon the ass ertion that the chancery court lacked jurisdiction to a d judicate Samantha’s custody. On October 7, 1997, the cha ncery court denied Barri’s motion to allow a Rule 9 interlocutory

appeal from the March 14, 1997 award of temporary custody to Lanny. It reserved ruling on all other pending matters, including Barri’s motion to dismis s, at that time.

On November 7, 1997, Barri sought a Rule 10 extraordinary appeal by permission from this Court. On December 8, 1997, this Court ordered that proceedings in this Court be he ld in abeyance pending the chancery court’s dis position of the motion to d ismiss

. Thereafter, on December 12, 1997, Barri again filed a “r enewed” motion to dismiss in the chancery court. On April 9, 1998, after Barri’s motion to dismiss was again brought before the chancery court, the chancery court denied Barri’s motion to dismiss. There after, on May 4, 1998 , Barri filed a revised Rule 10 application for extraordi nary appeal by5

permission from this Court, which we granted by order dated May 21, 1998.

As such, the issue before this Court is whethe r the Gibson County Chancery Court conti nues to h ave subject matter juri sdiction as to Samantha’s cust ody, even after

the commencement of juvenile court proceedin gs wherein Samantha has been all eged to be dependent and neglected.
Analysis

There existsno dispute that, after the chancery court’ s divorce decree as to Lanny
a nd Barri, and bef ore the comme ncement of d ependent an d neglect procee dings in th e juve nile court, the chancery court possessed subject matter jurisdiction to hear and rule upon disputes relating to Samantha’s custod y. S uch jurisdiction is es tablished by Tennessee Co de Annotated section 36-6-10 1(a)(1), which provide s the following: In a suit for . . . divorce . . . , where the custody of a minor c hild . . . is a question, the court may . . . awar d the care, custody and control of such child

. . . to either of the parties to the suit . . . as the wel fare and interest of the child . . . may demand, and the court may decree that su itable support be made

. . . . Such

decree shall remain within the control of the court and be subject to such changes or m odification as the exigenci es of the case may require

. Tenn. Code Ann. § 36-6-101 (Supp. 1998) (emphasis added). Section 36-6-101, however, further states, “Nothing in th is chapter shall be constr ued to alter, modif y or restrict the exclusive jurisdiction of the juvenile court pursuant to § 37-1-103.” Id. § 36-6-101(c).

As contend ed by Barri , we find that the issue before this Court is controlled by the plain and unam biguous language of section 37- 1-103, which provid es the following: (a) The juvenile court has exclusive original jurisdiction of the followin g proceedings, which ar

e governed by this part: (1) Proceedings in which a child is alleged t o be del inquent, unruly or dependent

and neglected

, or to have committed a juvenile traffic offense as defined in § 37-1-146;

. . . . (c) When jurisdiction has been acquired under the provisions of this par t, such jurisdiction shall continue until a person reaches t he age of eighteen (18), except

that the court may extend jurisdiction for the limited purposes set out in § 37-1-102(b)(4)(B) until the person reaches the age of nineteen (19). Tenn. Code Ann. § 37-1-103 (Supp. 1998) ( emphasis added). Based upon this statute,1. The record on appealin thi s case suggests that the juveni le court d eemed its role in Samantha’s cust ody to be concluded upon t he entry o f its Janua ry 17, 199 6 order, an d that i t deemed any furt her proceedings concerning Samantha’s custody to be matters for t he chancery court to resolv

e. 6 once a petition is filed in juv en ile court to declare a child dependent and neglected, the juvenile court has exclusiv e jurisdiction regar

ding custody of the

child, and any

subsequent order concern ing custody entered by the chancery court, which in this case is the court hav ing jurisdiction over the original divor

ce proceeding, is voi d. State v. Gouvitsa , 735 S.W.2d 452, 457 (Tenn. App. 1987). See also Arnold v. Gouvista , 735 S.W.2d 458 (Tenn. App. 1987); Kidd v. State ex rel. Moore , 207 Tenn. 244, 338 S.W.2d 621 (1960); Marmino v. Marmino , 34 Tenn. App. 352, 238 S.W .2d 105 (1950). That this juris diction wa s intend ed to be exclusive i s reinforced by the omission of dependency and neg l ect proceedings from T.C.A. § 37- 1-104, which lists th e various proceedings in which the juveni le court shares concurrent jurisdiction with other courts. Gouvitsa , 735 S.W.2d at 455. Therefore, the Gibson County Ch ancery Court hadn o jurisdiction over Samantha’s custody after the State commenced dependent and n eglect proceedings in juveni le court. See Gouvitsa , 735 S.W.2d at 457.

The jurisdiction of

the court entertaining del inquency or dependency proceedings is continuing, to the ex clusion of any

other court of concurrent jurisdiction, and except as jurisdic ti on m ay be relinquished in accordance with statute, once a juvenile court has entertained jurisdiction over a child th at court must take affirmative action to dispose of the case in one of th e ways provided by statute befor e jurisdiction can termi nate. Ordinarily, the jurisdiction of the court co ntinues until th e child reaches m ajority, or the age specified by statute.... Gouvitsa , 735 S.W.2d at 455-56 (quoting 43 C.J .S. Infants § 53 (1978)). Section 37-1-103 sets forth only onemanner by which the juvenil e court’s exclusiv e jurisdiction may be relinquished, that being the child’s at tainmentof the age of majority. See Tenn. Code Ann. § 37-1-103(c). Accordi ngly, the chancery court’s denial of Barri’s motion to dismiss must be reverse d as to any c laims rega rding Sam antha’s custody.

Moreover, we further

note that, while Lanny did not submit a brief to this Cour t, any argumentthat he might have raised as to whether th e juvenile court conferr ed or transferred its

jurisdiction to the chancery court would be unsuccessful. 1 This Court has twice previousl y recognized , in two unr eported opinions , that a ju ve nile court exercising exclusive jurisdiction over custody matters cannot confer itsjurisdiction on another c ourt.7

S impkins v. Greer , No. 01-A-01-9202-CH00060,1993 WL 18311 at *3 (Tenn. App. J an . 29, 1993); Hicks v. Hicks , No. 01A01-9309-CH-00417, 1994 WL 108896 at *2 (Tenn. App. March 30, 1994). In Simpkins v. Greer , this Court stated,

It is clear that the parties

cannot confer subject matter jur isdiction on the court by consent. See Curtis v. Garrison , 211 Tenn . 33 9, 346, 364 S.W.2d 933, 936 (1963); James v. Kennedy , 174 Tenn. 591, 595, 129 S.W .2d 215, 216 (1939). We think it is equally clear that a court

cannot confer subject matter jurisdic

tion on another court. Tenn. Cons t. art. 6, § 1 grantsthe legislature the pow er to determine how many and whatkinds of courts are required for the admini stration of justice and the power to fix the limits of ea ch court's jurisdiction. See State ex rel. Ward v. Murrell , 169 Tenn. 688, 692, 90 S.W.2d 945, 946 (1936). Courts possess "only such jurisdictionalpowers as are directly, or indi rectly, expressl y or by implication, conferred upon [them] by the constituti on or legislation of the sove rignty on behalf of which [they] function." 20 Am. Jur. 2d Courts § 91 (2d ed. 1965); see also Co o nradt v. Sailors , 186 Tenn. 294, 305, 209 S.W.2d 859, 863 (1948); McHenry's Lessee v. Wallen , 10 Tenn. 441, 444 (1830). Simpkins , 1993 WL 18311 at *3.

It must be noted, however, that the chancery court proceedings in this case also involve such issues a s child support, as to which this Court has stated the following: the juvenile court will not adjust parental di sputes concerning the car e an d education of a minor, such matters being for a cour t of equity where the parents are actual parties. Gouvitsa , 735 S.W.2d at 455 (quoting 43 C.J.S. Infants

§ 53 (1978 )). Accord ingly, while we have found it necessary to rev erse the trial court’s

denial of Barri’s motion to dismiss
as to any claims regar

ding Samanth a’s custo dy, we further find it appropri ate to remand this case for any further pr oceedings as may be appropr iate in light of this opin ion.

Conclusion

Based upon the foregoing, the chancer y court’s denialof Barri’s motion to dismiss
as to any claims regarding Samantha’s c ustod y is hereby rev ersed, and any award of temporary c u stody entered by the chanc ery court after the commencement of the dependent a nd neglect proce edings in the juvenile court is void and hereby vacated. All issues concerning Samantha’s cust ody remain in the GibsonCounty Juvenile Court. This
case is hereby remandedto the Gibson County Chancery Court for further proceedings as8

hereinabove set forth. Costs of this appeal are taxed to Lanny, for which execution may issue if n ecessary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.