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In re Omari T.

Court of Appeals of Tennessee, Nashville

October 10, 2019

IN RE OMARI T.

          Assigned on Briefs August 1, 2019

          Appeal from the Juvenile Court for Montgomery County No. 17-JV-1085 Timothy K. Barnes, Judge.

         This appeal results from a custody action. A Missouri court issued an initial custody decision providing Cherita L. ("Mother") with primary custody of Omari T. ("the Child"). Both parents and the Child later moved out of that state. Both Mother and the Child relocated to Tennessee. The father, Otis T. ("Father"), resided in Tennessee for a time but more recently had been living and working in Germany. In response to a petition to domesticate the foreign decree and modify custody, the Juvenile Court for Montgomery County ("Juvenile Court") subsequently entered in July 2017 an "agreed order" reflecting that the parties resided in Tennessee and approving an agreed parenting plan designating Father as the primary residential parent of the child. The agreed order was signed only by the Juvenile Court Judge and Father's counsel. Mother's signature was not included on the agreed order nor was a certificate of service included showing that the order was provided to Mother. Approximately a year later, Father filed a contempt petition when Mother refused to return the Child to Father's custody. In response, Mother filed a motion to set aside the agreed order modifying custody, pursuant to Tennessee Rule of Civil Procedure 60.02(3), (4), and (5). The Juvenile Court denied Mother's Rule 60.02 motion and determined that Mother had violated the Juvenile Court's July 2017 order and held Mother in contempt. We hold that the Juvenile Court's July 2017 order had no effective entry date pursuant to Tennessee Rule of Civil Procedure 58, and Mother, therefore, could not have been in contempt of that order. We affirm the Juvenile Court's order transferring venue to Shelby County, and we vacate the July 2017 order and all other subsequent orders by the Juvenile Court concerning Father's contempt petition.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed, in Part, and Vacated, in Part; Case Remanded

          James Sanders, Memphis, Tennessee, for the appellant, Cherita L.

          Jacob P. Mathis, Clarksville, Tennessee, for the appellee, Otis T.

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Kenny W. Armstrong, J., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         In 2011, Father and Mother lived in Missouri. The parties had one child, the Child, during their relationship. In January 2011, the 19th Judicial Circuit Court of Cole County, Missouri ("Missouri Court") entered an order regarding custody and child support. The Missouri Court ordered that the parents would have joint legal and physical custody of the Child. Mother was to have primary physical custody of the Child during the school year. Father was to have exclusive physical custody of the Child for ten weeks each summer, beginning on June 1st and ending on August 1st. The Juvenile Court ordered, in pertinent part, that Father was to pay to Mother $484 per month in child support for the Child and provide health insurance for the Child.

         In their appellate briefs, both parties agree that Mother and the Child left Missouri in 2012 and relocated to Memphis, Tennessee. Father states in his brief that he had been living in Clarksville, Tennessee for more than six months as of June 2014. The record is unclear as to exactly when Father left Missouri.

         Father filed a petition to modify child support in the Juvenile Court in June 2014. A hearing was scheduled before the Juvenile Court in October 2014. However, the Juvenile Court entered an agreed order in September 2014, modifying Father's child support obligation to $322 per month. Father's attorney and Mother, as a pro se litigant, signed the agreed order.

         It is undisputed that none of the parties lived in Missouri in July 2017. At the time, Father was living in Germany, and Mother was living in Memphis, Tennessee. On July 25, 2017, Father filed a petition in the Juvenile Court to domesticate the foreign decree from the Missouri Court and to modify custody. The Child was eight years old at that time. Also on July 25, 2017, the Juvenile Court entered an agreed order, which began: "Comes now the parties, as evidenced by their signatures on the attached Parenting Plan, and would agree as follows . . . ." The order identified Father as residing in Clarksville, Tennessee and Mother residing in Memphis, Tennessee. The agreed order stated that the parties agreed that a material change in circumstances had occurred since entry of the Missouri Court's custody order, that it was in the Child's best interest for Father to be designated as primary residential parent, that the parties had entered into a permanent parenting plan reflecting the parties' agreement, and that the agreed parenting plan is in the Child's best interest. Based on the apparent agreement of the parties as reflected in the order, the Juvenile Court approved the parties' agreed parenting plan modification. The agreed order was signed by the Juvenile Court Judge and Father's attorney. The agreed order was not signed by the parties and did not include a certificate of service.

         The attached parenting plan order is specified as "Agreed" and lists the State of Tennessee and the Montgomery County Juvenile Court at the top of the document. The plan states that it modifies an existing order dated January 2011. In this new plan, Father is designated as the primary residential parent with 285 days to Father and 80 days to Mother. The plan also states that Mother will have the Child each year from June 1st to August 1st. As to child support, the parenting plan states that neither parent will pay child support to the other due to the substantial transportation costs that will accompany the Child residing overseas with Father.[1] Mother signed the parenting plan on July 19, 2017. Father did not ...


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