July 17, 2014 Session
Appeal from the Circuit Court for Sumner County No. 2102CV1066 C. L. Rogers, Judge
Nicholas W. Utter, Nashville, Tennessee, for the appellant/plaintiff, Patrick Richard Moorcroft, and appellant/defendant, Natalie Talmage Moorcroft.
Jonathan A. Garner, Springfield, Tennessee, and Peter L. Ostermiller, Louisville, Kentucky, for the appellee/intervening plaintiff, Flora Templeton Stuart.
Robert E. Cooper, Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; and Mary B. Ferrara, Assistant Attorney General, Nashville, Tennessee, on behalf of the State of Tennessee.
W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins J., joined.
W. NEAL McBRAYER, JUDGE
I. Background and Procedural History
The current Tennessee litigation began with a petition for legal separation filed by one of the Appellants, Patrick Moorcroft ("Father"), against the other, Natalie Moorcroft ("Mother"), on September 12, 2012. Claiming that Mother and Father had both been "bona fide residents of Tennessee for more than six (6) months" prior to the filing of the complaint, Father sought approval of a legal separation agreement and a temporary parenting plan by the Sumner County Circuit Court. The temporary parenting plan was intended to provide "for the adequate care, maintenance and support of the parties' [three] minor children."
The parenting plan designated Father as the primary residential parent and provided Mother visitation with the children from 11:00 p.m. to 7:00 a.m. Monday through Saturday. After conducting a hearing on the matter, the circuit court entered an order on September 20, 2012, granting Mother and Father a separation on the grounds of irreconcilable differences and incorporating the parties' temporary parenting plan into its order.
However, on October 1, 2012, the Appellee, Flora Stuart ("Grandmother"), filed a Motion to Intervene and a Motion to Alter, Amend, or Vacate the circuit court's September 20, 2012 order. Grandmother asserted an interest in the outcome of the proceedings on the basis of a temporary grandparent visitation order, which had been entered by a Kentucky court on September 11, 2012, the day before the filing of the circuit court proceeding. As grounds for her motion to set aside the circuit court's order, Grandmother asserted that Mother and Father had "engaged in fraud, misrepresentation, and/or other misconduct in connection with the entry of the Separation Order."
Grandmother alleged that Mother and Father had entered into a sham separation proceeding in an attempt to undermine visitation rights granted to her by the Circuit Court of Warren County, Kentucky. She also claimed that the parents had attempted to deceive the circuit court by failing to provide it with detailed information regarding the Kentucky proceedings as required by Tennessee Code Annotated §§ 36-4-106 (2014) and 36-6-224(a)(1)-(3) (2014). As an exhibit to her Motion to Intervene, Grandmother included a petition for grandparent visitation she had filed with the Kentucky court. She also included a copy of the Kentucky court order granting her temporary grandparent visitation rights, along with various other records from the Kentucky litigation.
Father, Mother, and their children resided in Bowling Green, Kentucky, until they moved to Whitehouse, Tennessee, sometime between August 29, 2011, and mid-September 2011. Mother and Grandmother are both attorneys, and Mother worked as an attorney at Grandmother's law firm for several years. Their personal and business relationship began to deteriorate in December 2010, and Mother left Grandmother's firm in March 2011. After leaving the firm, the relationship between the two became even more acrimonious, and Mother eventually forbid Grandmother from contacting the children.
Grandmother, in an effort to resume her relationship with her grandchildren, filed a petition for grandparent visitation with the Kentucky court on August 30, 2011. Mother responded by filing a motion to dismiss the Kentucky visitation proceedings, alleging that she, Father, and the children had moved to Tennessee one day prior, on August 29, 2011, and that the Kentucky court therefore lacked jurisdiction over the proceedings. Mother also argued that the Kentucky court lacked personal jurisdiction over Father because he had not yet been served.
Whether the family had moved to Tennessee before Grandmother's August 30, 2011 petition for visitation became a hotly-contested issue in the Kentucky proceedings. In its May 30, 2012 order denying Mother's motion to dismiss, the Kentucky court found that the family had not relocated to Tennessee prior to the filing of the petition for grandparent visitation; therefore, the Kentucky court asserted jurisdiction over the matter.
The circuit court granted Grandmother's Motion to Intervene and held in abeyance her Motion to Alter, Amend, or Vacate its September 20, 2012 order of legal separation. Grandmother also filed motions to register and enforce the temporary visitation order with the circuit court on November 1, 2012.
Notice of Grandmother's motion seeking registration of the Kentucky court's temporary visitation order was provided to Mother and Father on December 7, 2012, under Tennessee Code Annotated § 36-6-229 (2014). Mother filed an answer to Grandmother's intervening complaint and an objection to registration of the Kentucky order on December 21, 2012. In her answer, Mother argued that the Tennessee version of the Uniform Child Custody Jurisdiction and Enforcement Act ("TUCCJEA"), codified at Tennessee Code Annotated §§ 36-6-201–243 (2014), is not amenable to the registration of foreign grandparent visitation orders and that registration of the Kentucky order under the UCCJEA would be "contrary to the rights afforded Tennessee residents under Article I, Section 8 of the Tennessee Constitution."
Meanwhile, the Kentucky proceedings reached a conclusion, and the court issued its final order on March 4, 2013, granting Grandmother visitation rights. The order, along with various other filings in the record, contains numerous findings of fact and conclusions of law related to the Kentucky proceedings that are also relevant here. For instance, the Kentucky court found that Mother and Father had intentionally avoided service of process in those proceedings. Mother was only served after a Warren County Sheriff's Deputy scaled the fire escape at her law office in order to serve her on September 15, 2011. The Kentucky court found that Father had gone so far as to lie about his identity to a process server in order to evade service. In spite of finally being served on November 2, 2012, Father never appeared before the Kentucky court, and a default judgment was eventually entered against him. Mother also failed to appear at several hearings, despite an order from the Kentucky court compelling her attendance. The Kentucky court also found that Mother had failed to comply with its September 11, 2012 temporary visitation order.
In its final order, the Kentucky court noted that "[w]hen considering a petition for grandparent visitation, the court must presume that a fit parent is making decisions that are in the child's best interest." To overcome that presumption, "[t]he grandparent petitioning for visitation must [prove] with clear and convincing evidence that visitation . . . is in the child's best interest." The Kentucky court found that Mother had admitted in her deposition that it was in the best interest of her children to continue their relationship with Grandmother. Ultimately, the court found that "harm to the children has resulted" through the severance of their relationship with Grandmother.
Following entry of the Kentucky court's order, Grandmother filed a supplemental request with the Tennessee circuit court seeking the registration and enforcement of the final Kentucky order. On March 25, 2013, Father filed an objection to registration of the Kentucky orders and a request for a hearing with the Tennessee circuit court. Mother filed a similar pleading the next day.
After conducting a hearing regarding registration on September 13, 2013, the circuit court issued an amended order granting registration of the Kentucky order, "to be enforced with full faith and credit by this Court." The circuit court then worked to set a hearing on the issue of enforcement, which was ultimately held on December 17, 2013.
Mother filed a motion on November 12, 2013, objecting to the enforcement of the Kentucky order and arguing that the TUCCJEA violated her rights under Article I, Section 8 of the Tennessee Constitution insofar as it allowed the registration and enforcement of a foreign grandparent visitation order without a showing of substantial harm to the child. In response to this argument, the Tennessee Attorney General's Office sought leave to intervene under Rule 24.01 of the Tennessee Rules of Civil Procedure, "for the limited purpose of defending [Mother's] challenge to the constitutionality of Tenn. Code Ann. §§ 36-6-237; and 36-6-205(3) and (4)." The circuit court entered two orders on December 17, 2013, one granting the Attorney General's motion to intervene and the other granting Grandmother's request for enforcement. Mother's constitutional challenge to the TUCCJEA was denied in an order entered by the circuit court on January 8, 2014.
Mother and Father timely appealed the trial court's orders of registration and enforcement. On appeal, they argue: (1) that the Kentucky court lacked subject matter jurisdiction to enter its orders; (2) that the circuit court erred in registering and enforcing the Kentucky order under the TUCCJEA; (3) that registration and enforcement of the Kentucky order violates their rights under Article I, Section 8 and Article II, Section 2 of the Tennessee Constitution; (4) that Tennessee Code Annotated § 36-6-306 (2014) is the sole remedy for grandparent visitation in Tennessee where a grandparent has an existing order from a foreign jurisdiction; and (5) that Tennessee Code Annotated § 36-6-306(a)(4) requires a hearing on the issue of substantial harm to the child prior to the enforcement of a foreign grandparent visitation order regardless of whether that order is registered in Tennessee.
We review a trial court's findings of fact de novo upon the record, with a presumption of correctness, unless the preponderance of the evidence is to the contrary. Tenn. R. App. P. 13(d); Lovlace v. Copley, 418 S.W.3d 1, 16 (Tenn. 2013). Visitation decisions often hinge on determinations of witness credibility, which are afforded considerable deference. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007); Lovlace, 418 S.W.3d at 16. Therefore, we will not reverse on an issue that hinges on witness credibility unless there is clear and convincing evidence "other than the oral testimony of witnesses which contradict the trial court's findings." In re M.L.P., 228 S.W.3d at 143 (quoting Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn. Ct. App. 1990)). "Review of a trial court's determinations on issues of law, such as the existence of subject matter jurisdiction and statutory construction, is de novo, without any presumption of correctness." Lovlace, 418 S.W.3d at 16; see also Button v. Waite, 208 S.W.3d 366, 369 (Tenn. 2006).
A. Jurisdiction of the Kentucky Court to Issue the Grandparent Visitation Order
Initially, Mother and Father contend that the Kentucky court lacked jurisdiction to issue a grandparent visitation order. This amounts to a collateral attack on the Kentucky court's order, which we generally do not allow. We normally require that "a court order [ ] be given full effect, regardless of whether it was entered in error, unless [ ] a party obtains dissolution of the order through operation of the judicial system of review." In re Estate of Rinehart, 363 S.W.3d 186, 189 (Tenn. Ct. App. 2011) (internal quotations omitted). Such an attack is permissible only where the order in question is void. Lovlace, 418 S.W.3d at 19; Rinehart, 363 S.W.3d at 190. "[A] . . . decree is void and subject to collateral attack only where the trial court lacks general jurisdiction of the subject matter, rules on an issue wholly outside of the pleadings, or lacks jurisdiction over the party complaining." Gentry v. Gentry, ...