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In re Serenity W. M.

Court of Appeals of Tennessee, Knoxville

July 23, 2015

In re SERENITY W. M.

Session May 15, 2015.

Appeal from the Juvenile Court for Campbell County No. 2014-JC-177 Joseph M. Ayers, Judge.

This case involves a dispute regarding the custody of Serenity W.M. (the Child), the minor daughter of Matthew Ryan Martin (Father) and Natasha Amber Nichole[1] Martin (Mother). Shortly after the Child's birth, a state district court in the Commonwealth of Kentucky entered an order granting temporary custody of the Child to her maternal uncle, Christopher Mayo, and his wife, Natasha Cima (collectively Petitioners). Later, Petitioners filed a petition in the Tennessee trial court seeking (1) enforcement of the Kentucky order and (2) emergency custody of the Child. Following a hearing in Tennessee, the trial court granted the petition and ordered that custody would remain with Petitioners pending further proceedings in Kentucky. Father and Mother appeal. We affirm.

Mark R. Orr, Knoxville, Tennessee, for the appellants, Matthew Ryan Martin and Natasha Amber Nichole Martin.

Terry M. Basista, Jacksboro, Tennessee, for the appellees, Christopher Mayo and Natasha Cima.

Charles D. Susano, Jr., C.J., delivered the opinion of the court, in which D. Michael Swiney and John W. McClarty, JJ., joined.

OPINION

CHARLES D. SUSANO, JR., CHIEF JUDGE.

I.

The Child was born June 16, 2014, in Jellico, Campbell County, Tennessee, to Mother and Father, who at the time were unmarried.[2] Her birth certificate reflects that her parents were both born in Kentucky. The same certificate, however, reflects that Mother's residence is a street address in Jellico. On June 25, 2014, an "Amended Temporary Custody Order"[3] was entered by the Whitley County District Court, 34th Judicial District, Commonwealth of Kentucky. The Kentucky order, simply stated, reflects that, following a hearing, a Whitley County district court judge granted Petitioners' request for temporary custody of the Child based upon its determination that the action was in the best interest of the Child. The Kentucky order further authorized "any peace officer" to accompany Petitioners to obtain custody of the Child. Two days later, on June 27, Petitioners filed a petition in the trial court to enforce the Kentucky order and to obtain emergency custody of the Child. The same day, the trial court, by emergency ex parte order, granted the petition based on "the exigencies of the circumstances" and awarded temporary custody of the Child to Petitioners, thereby enforcing the Kentucky order. The trial court further authorized any law enforcement officer in Campbell County to accompany Petitioners,

to wherever the said minor child may be found in the county using whatever lawful force may be necessary [to] take said child bodily and place her into the care and custody of the Petitioners who are in turn authorized to take said child with them to return to Kentucky whereby all matters relating to the said child may be dealt with lawfully by the Commonwealth of Kentucky.

Finally, the trial court issued a temporary restraining order prohibiting Father and Mother from interfering with Petitioners' custody of the Child during the pendency of this custody dispute. In their appellate brief, Father and Mother state that, pursuant to the trial court's order, and on the same day the Tennessee order was entered, the Child was removed from their custody, placed in Petitioners' custody, and taken to Kentucky. It is clear that the Petitioners reside in Kentucky.

Following a later hearing in the Tennessee court, on July 2, 2014, the court held that the Kentucky court "had proper jurisdiction over the parties and minor child in this cause and that the Amended Temporary Custody Order issued by that court . . . should be enforced." On August 22, 2014, the trial court further held that "all matters relating to custody of the minor child . . . should be heard by that [Kentucky] court for further determination."

Father and Mother filed a timely notice of appeal.

II.

As taken verbatim from their brief, Father and Mother raise a single issue for our review:

Did the trial court err in holding that the Whitley County, Kentucky[, ] District Court had jurisdiction over the minor child and the Order of Custody of that court was entitled to enforcement?

Our standard of review in this case is de novo. "Whether a court has jurisdiction 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." Button v. Waite, 208 S.W.3d 366, 369 (Tenn. 2006). "Issues of statutory construction are also reviewed de novo." Harris v. Haynes, 445 S.W.3d 143, 146 (Tenn. 2014) (internal citation omitted).

III.

The parents argue that the Kentucky court was without jurisdiction to enter its order. They assert that the judgment should be reversed because of the Kentucky court's lack of jurisdiction over the Child – an issue which, as the parents see it, the Tennessee trial court failed to address when it decided to enforce the Kentucky order. Petitioners' response is as follows:

[T]he Tennessee trial court strictly speaking did not actually determine whether or not the Kentucky Court had jurisdiction when the Kentucky court issued the . . . [amended temporary custody order], but rather the Tennessee trial court determined that the Kentucky Court had made a determination that it did have jurisdiction of [Father and Mother] and of the minor child, and the Tennessee trial court further held that the Kentucky order was entitled to full faith and credit and enforcement. . . .

In their petition to enforce the Kentucky order, Petitioners aver that "Kentucky has jurisdiction of this said minor child, and Tennessee has emergency jurisdiction of the said child due to the child's presence in Tennessee, and Tennessee has jurisdiction and right to enforce the orders of another state." Father and Mother did not answer the petition in writing. At the hearing, they argued, through counsel, that the Kentucky court lacked jurisdiction, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), as codified in each of the two states, to enter the order given that the Child was born in and removed from Tennessee. As the trial court put it, the gist of parents' argument is that the Kentucky court issued a "bad order, " and the Tennessee trial court erroneously enforced it. At the hearing in Tennessee, counsel for the parents argued that, when the Child was taken, both parents and the Child resided in Tennessee, and that they had no notice of the Kentucky custody proceeding. No testimony or other proof was received into evidence during the hearing.[4] Father and Mother did not file a written ...


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