Session May 7, 2019
by Permission from the Court of Appeals Circuit Court for
Knox County No. 110074 Gregory S. McMillan, Judge
granted this appeal to consider whether a circuit court loses
continuing, exclusive subject matter jurisdiction if a
post-divorce petition seeking modification of a parenting
plan adopted in a final divorce decree alleges facts that are
tantamount to claims of dependency and neglect, over which
juvenile courts have exclusive original jurisdiction pursuant
to Tennessee Code Annotated section 37-1-103. After we
granted this appeal, the General Assembly amended section
37-1-103 to expressly provide that a circuit court retains
subject matter jurisdiction in these circumstances until and
unless a pleading is filed or relief is sought in juvenile
court and the juvenile court's exclusive original
jurisdiction is invoked. Act of April 18, 2019, 2019 Tenn.
Pub. Acts ch. 167. The General Assembly applied this
amendment to all cases pending on its April 18, 2019
effective date, including this appeal. Id. § 2.
Because no pleading was filed in juvenile court nor was the
juvenile court's exclusive jurisdiction invoked in any
other manner in this case, the circuit court retained subject
matter jurisdiction of the post-divorce petition. Therefore,
the judgment of the Court of Appeals is reversed, and the
judgment of the circuit court is reinstated.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Appeals Reversed and Judgment of the Trial Court
Deno Cole, Darren V. Berg, and R. Samuel English (at trial),
Knoxville, Tennessee, for the appellant, Bradley James Cox.
Brett Lucas, Brentwood, Tennessee, for the appellee, Laura
Cornelia A. Clark, J., delivered the opinion of the court, in
which Jeffrey S. Bivins, C.J., and Sharon G. Lee, Holly
Kirby, and Roger A. Page, JJ., joined.
CORNELIA A. CLARK, JUSTICE
Factual and Procedural History
James Cox ("Father") and Laura Nicole Lucas
("Mother") were divorced by a final decree of the
Circuit Court for Knox County, Tennessee ("Circuit
Court"), entered on July 7, 2008. This final decree
adopted and incorporated the parties' Marital Dissolution
Agreement, which in turn, adopted and incorporated their
Permanent Parenting Plan ("PPP"). The PPP
designated Mother as primary residential parent of the
parties' five-year-old child and gave Mother major
decision-making authority. Father received substantial
parenting time under the PPP.
years later, on November 10, 2015, Father returned to the
Circuit Court and filed a petition seeking modification of
the PPP and emergency relief pursuant to Tennessee Code
Annotated sections 36-6-101 et seq. In support of these
requests, Father alleged certain facts concerning
Mother's conduct and her care of the minor child. Father
requested exclusive care, custody, and control of the minor
child, and he alleged that the minor child lacked proper care
and supervision and was in danger of immediate and
irreparable harm in Mother's care. On the same day Father
filed this petition, the Circuit Court entered an interim
emergency order granting Father immediate sole custody of the
minor child and setting a hearing within fifteen days.
See Tenn. Code Ann. § 36-6-405(b) (2017)
(authorizing this process).
December 8, 2015, Mother filed an answer denying the
allegations of Father's petition. After a hearing on
December 8, 2015, the Circuit Court granted Mother supervised
visitation and telephonic communication with the minor child
but reserved all other issues. On December 29, 2015, the
Circuit Court entered an order granting Mother's
lawyer's motion to withdraw. More than eighteen months
later, on July 10, 2017, the Circuit Court entered a modified
PPP designating Father the primary residential parent with
sole decision-making authority. Mother did not file an appeal
from this order.
September 15, 2017, after the time for filing an appeal had
expired,  Mother, represented by new counsel, filed
a document in the Circuit Court styled as a motion to dismiss
for lack of subject matter jurisdiction pursuant to Rule
12.02(2) of the Tennessee Rules of Civil Procedure. In
substance, however, this motion sought relief that was by
then only available under Rule 60.02(3) of the Tennessee
Rules of Civil Procedure.Mother argued that the factual
allegations of Father's petition were "tantamount to
alleging dependency and neglect" as those terms are
defined by statute. Cox v. Lucas, No.
E2017-02264-COA-R3-CV, 2018 WL 5778969, at *5 (Tenn. Ct. App.
Nov. 2, 2018), perm. app. granted (Tenn. Feb. 22,
2019). Mother claimed that these dependency and neglect
allegations divested the Circuit Court of subject matter
jurisdiction because juvenile courts have exclusive
jurisdiction of proceedings involving dependency and neglect
allegations pursuant to Tennessee Code Annotated section
37-1-103. As a result, Mother claimed that all of the Circuit
Court's orders in the case were void for lack of subject
matter jurisdiction. Cox, 2018 WL 5778969, at *3.
The Circuit Court held a hearing but denied Mother's
motion by a February 20, 2018 order.
appealed, and the Court of Appeals reversed. The Court of
Appeals noted that it had located only three prior decisions
involving arguments like the one Mother raised. Id.
at *4. In the first case, the Court of Appeals flatly
rejected the argument and held that the allegations of the
post-divorce petition did not divest the chancery court of
its continuing jurisdiction to modify the custodial
arrangement in the divorce decree. Munday v. Munday,
No. E1999-02605-COA-R3-CV, 2000 WL 1154500, at *7 (Tenn. Ct.
App. Aug. 15, 2000). In the second case, the Court of Appeals
avoided definitively ruling on the question because it
concluded that the allegations of the post-divorce petition
were not tantamount to a dependency and neglect claim.
Holley v. Holley, 420 S.W.3d 756, 760 (Tenn. Ct.
App. 2013). In the third case, the Court of Appeals agreed
with the argument and held that the chancery court lacked
subject matter jurisdiction because the allegations in the
post-divorce petition constituted a dependency and neglect
claim. Tavino v. Tavino, No. E2013-02587-COA-R3-CV,
2014 WL 5430014, at *11 (Tenn. Ct. App. Oct. 27, 2014). The
Court of Appeals in this appeal followed Tavino and