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Hernandez v. Hernandez

Court of Appeals of Tennessee, Jackson

July 30, 2019

AMBER ADA HERNANDEZ
v.
DAVID ALAN HERNANDEZ

          Assigned on Briefs May 1, 2019

          Appeal from the General Sessions Court for McNairy County No. 7848 Van D. McMahan, Judge

         This appeal involves a petition for modification of a permanent parenting plan. The initial permanent parenting plan order was entered by the McNairy County General Sessions Court ("trial court") in October 2006. In November 2016, the father filed a petition in the trial court, alleging that a material change in circumstance had occurred due to the mother's having been charged with aggravated statutory rape. The father concomitantly filed a petition requesting a temporary injunction granting him "emergency custody" and suspending the mother's co-parenting time. The mother filed a motion to dismiss the petitions, alleging that the trial court lacked subject matter jurisdiction because the parties and the child all resided outside of Tennessee. In December 2016, the trial court entered an "Order for Visitation," inter alia, modifying the father's holiday co-parenting time and directing that the mother's co-parenting time be supervised by her stepmother. Following a bench trial, the trial court granted the mother's motion to dismiss for lack of subject matter jurisdiction pursuant to Tennessee Code Annotated § 36-6-217 (2017) of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). The father has appealed. We affirm with one modification to the final judgment to clarify that with the trial court's dismissal of this action, the December 2016 temporary order was no longer of any effect.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Affirmed as Modified; Case Remanded

          George Douglas Norton, Jr., Selmer, Tennessee, for the appellant, David Alan Hernandez.

          Lloyd Rogers Tatum, Henderson, Tennessee, for the appellee, Amber Ada Hernandez.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and W. Neal McBrayer, J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         The petitioner, David Alan Hernandez ("Father"), and the respondent, Amber Ada Hernandez ("Mother"), married in 2005 and together had one daughter, Z.H. ("the Child"). Although the divorce decree and permanent parenting plan order are not in the record on appeal, the parties agree that both were entered by the trial court on October 26, 2006. It is undisputed that in the permanent parenting plan, the trial court designated Mother as the primary residential parent and provided Father with co-parenting time with the Child every weekend from 6:00 p.m. on Friday through 6:00 p.m. on Sunday. During the April 2018 trial in the instant action, Father testified that he had relocated to North Carolina four years prior to trial, or at some point in 2014.

         During trial, Mother testified that she and the Child remained in Tennessee through 2014. It is undisputed that in April 2014, Mother became the focus of a criminal investigation involving sexual contact with a minor in McNairy County. According to Mother's testimony, she and the Child relocated in 2014 first to Nashville for approximately one year and then to Athens, Alabama, at some point in 2015, where they resided at the time of trial with Mother's father; stepmother; siblings; current husband; and a daughter, L.C., from Mother's current relationship.

         Father initiated the instant action by filing two petitions in the trial court on November 17, 2016, averring in both petitions that Mother had been arrested on various charges related to the criminal investigation. In the first petition, filed as a "Petition for Temporary Injunction" pursuant to Tennessee Rule of Civil Procedure 65.07, Father sought, inter alia, to have the trial court suspend Mother's visitation pending further order and grant to Father "emergency custody" of the Child. In the second petition, Father asserted that a material change in circumstance had occurred since entry of the permanent parenting plan. He requested that the trial court modify the permanent parenting plan by designating Father as the primary residential parent and allowing Mother to have only supervised visitation with the Child.

         Also on November 17, 2016, Mother filed a motion to dismiss both petitions and an answer to the petition for temporary injunction. In her motion to dismiss, Mother asserted that the trial court lacked subject matter jurisdiction and was an improper venue pursuant to applicable provisions of the UCCJEA. In her answer, Mother acknowledged that she had been charged in the criminal case but stated that she was currently free on bond and that she intended to fight the charges. She denied all other substantive allegations of Father's petitions. In addition, Mother averred that while the Child had been in the care of Father and the paternal grandmother, the Child had been around an unrelated individual who was listed on the Tennessee Sexual Offender Registry.

         Following a non-evidentiary hearing, the trial court entered an "Order for Visitation" on December 5, 2016. The court granted to Father increased co-parenting time with the Child over the Thanksgiving and Christmas holidays and set forth the manner in which the parties were to exchange the Child. The court ordered that Mother's co-parenting time with the Child be supervised at all times by Mother's stepmother. The court also ordered that the paternal grandmother must not be around the Child unsupervised.

         On December 28, 2016, Mother filed an answer to Father's modification petition, as well as a counter-petition for modification of the permanent parenting plan. In these pleadings, Mother agreed that a material change in circumstance had occurred since entry of the permanent parenting plan. She asserted, inter alia, that a "new parenting plan [was] necessary to [e]ffect the goal of maximizing parenting time with each parent considering the distance in which the parties live from each other." Mother attached a proposed permanent parenting plan that would have provided her with 305 residential co-parenting days and Father with 60 co-parenting days per year.

         Father responded by filing an answer in which he asserted that Mother's counter-petition should be dismissed for failure to state a claim upon which relief could be granted. Upon Father's subsequent motion to set temporary visitation, the trial court entered an agreed order on June 12, 2017, providing co-parenting time with the Child to Father for most of June of that year.

         On August 21, 2017, Mother entered a guilty plea to aggravated statutory rape in the McNairy County Circuit Court. As a result, Mother's name was entered as a nonviolent offender on both the Tennessee and Alabama Sexual Offender Registries. The parties participated in mediation in November 2017, but a report filed by the mediator reflects that the parties did not reach an agreement. Upon Mother's motion, the trial court entered an order on January 10, 2018, directing both parties to "submit to a hair follicle or nail bed drug test." The results of Mother's drug test are in the record and reflect negative results for all substances screened.

         Over the course of two days, on April 10 and May 2, 2018, the trial court conducted a bench trial concerning the competing modification petitions and motions to dismiss. In addition to other witnesses, the court heard testimony from the parties and Mother's current husband. Upon Mother's motion, the court also considered testimony from the Child, who had turned twelve years of age in the interim between the two days of trial. At the close of trial, the court took the matter under advisement.

         On June 13, 2018, the trial court sent an email message to counsel for both parties, setting forth the court's findings of fact and conclusions of law. The trial court ultimately determined that Father's petition and Mother's counter-petition must be dismissed because the court lacked subject matter jurisdiction pursuant to the UCCJEA. The trial court entered its order memorializing this ruling on June 29, 2018. On July 27, 2018, Father timely appealed the order.

         On February 1, 2019, this Court entered an order determining that it lacked subject matter jurisdiction over Father's appeal because the order appealed from did not comply with Tennessee Rule of Civil Procedure 58. This Court noted that the order (1) was not signed by Father's counsel and included no certificate of service indicating that Father had been served and (2) did not have the findings of fact and conclusions of law attached as indicated in the order. Father subsequently obtained entry of a final judgment from the trial court in compliance with Rule 58. On February 6, 2019, the trial court entered a corrected final judgment granting Mother's motion to dismiss for lack of subject matter jurisdiction and incorporating and attaching the court's email with findings of fact and conclusions of law as a memorandum opinion. This appeal followed.

         II. Issue Presented

         Father presents one issue on appeal, which we have restated as follows:

Whether the trial court erred by granting Mother's motion to dismiss for lack of subject matter jurisdiction and by declining to specify a time period for Father to obtain an order from an Alabama court.

         III. Standard of Review

         This case requires application and construction of the UCCJEA. See Tenn. Code Ann. §§ 36-6-201, et seq. (2017). "Whether a court has jurisdiction under the UCCJEA is a question of law, subject to de novo review with no presumption of correctness." In re Arabella L., No. M2017-01069-COA-R3-JV, 2017 WL 5713939, at *1 (Tenn. Ct. App. Nov. 28, 2017) (citing Staats v. McKinnon, 206 S.W.3d 532, 542 (Tenn. Ct. App. 2006)). We review questions of law, including those of statutory construction, de novo with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000) (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see ...


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