Session November 6, 2019
from the Juvenile Court for Montgomery County No. 14-JV-852,
PL-CV14-2361 Tim Barnes, Judge
appeal involves a petition for contempt and to modify a
permanent parenting plan. Having carefully reviewed the
record before us, we conclude that the notice of appeal was
not timely filed. Because the notice of appeal was untimely,
we dismiss the appeal for lack of jurisdiction.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
Paisley P. Anderson, Clarksville, Tennessee, for the
appellant, Kymberly Anne Ash.
R. Bohenberger and Kevin C. Kennedy, Clarksville, Tennessee,
for the appellee, Dominique Clarke.
Dennis McGee, J., delivered the opinion of the court, in
which Frank G. Clement, Jr., P.J., M.S., joined. Richard H.
Dinkins, J., concurring in results only.
MEMORANDUM OPINION 
DENNIS MCGEE, JUDGE
Facts & Procedural History
Clarke ("Father") and Kymberly Ash
("Mother") are unmarried parents of an
eight-year-old daughter ("Daughter"). Father filed a
petition for modification and for contempt in early 2018.
According to his petition, Father sought to modify a
permanent parenting plan entered on March 10,
2015. Father alleged that a material change in
circumstance had occurred due to Mother being unstable. He
further claimed that he feared for the health, safety and
welfare of Daughter. He requested that the court designate
him as the primary residential parent. He also requested that
Mother be held in contempt of court for reportedly
restricting his visitation with Daughter.
hearing on Father's petition for modification and
contempt was held on October 3, 2018. Testimony was elicited
from Father and Mother. At the conclusion of the testimony,
the trial judge announced his oral ruling granting
Father's petition. "Judicial notes" from the
October 3, 2018 trial were filed on October 4, 2018,
providing a synopsis of the trial court's findings and
instructing Father's counsel to prepare an order. On
October 19, 2018, Father's counsel mailed a letter to the
trial judge, enclosing a proposed order and permanent
parenting plan. Mother's counsel was copied on the
letter. Father's counsel indicated in the letter that he
and Mother's counsel could not agree on an order. On
October 26, 2018, a permanent parenting plan and order were
entered by the trial court. The certificate of service on
both documents indicates that Father's counsel sent a
copy of the documents to Mother's counsel on October 22,
entered order reflects that Mother was in contempt of court
for willfully violating the court's "order by
denying Father visitation in June of 2015." The trial
court further found that a material change in circumstance
had occurred. Father's proposed parenting plan was
adopted by the court with the exception that the court
increased the number of days awarded to Mother from
Father's proposal of 44 days to 80 days. Father was
designated as the primary residential parent.
October 30, 2018, four days after the trial court's order
was entered, Mother's counsel sent a letter to the trial
court judge enclosing her proposed order and permanent
parenting plan from the hearing on October 3, 2018. She
indicated that she and Father's counsel could not agree
on an order "due to lack of communication." On
November 7, 2018, a notice of hearing, signed by the juvenile
court youth services officer, was sent to Mother's
counsel and Father's counsel. A handwritten note was
included on the notice of hearing providing that a hearing
would be held on November 14, 2018, to "address the
competing orders." On November 16, 2018, a judicial note
was filed by the juvenile court clerk, indicating that the
court accepted and entered Father's counsel's order.
The record does not contain an order memorializing the
judicial note. The next document in the record, that follows
the judicial note, is Mother's counsel's proposed
order that has a line marking through the document with
"rejected TB 11-14-18" handwritten on the proposed
December 14, 2018, Mother filed a motion to amend pursuant to
Tennessee Rule of Civil Procedure 59 and a motion to stay
proceedings pending appeal. Mother requested, in her motion
to amend, that the order entered on October 26, 2018, be
corrected to reflect an entry date of November 14, 2018, and
that all references to an "oral" motion to continue
be removed. A judicial note was filed by the juvenile court
clerk on December 20, 2018, which provided that:
Judge Barnes speaks with counsel in chambers. Attorney Kevin
Kennedy is present by telephone. The Motion Requesting Stay
of Proceedings pending Appeal and the Motion to Amend Under
Rule 59 filed by Attorney Paisley Anderson is denied.
Attorney P. Anderson draw order.
*Motion Hearing: 1/2/19 @ 9 is OFF.
subsequent order was signed by the trial court judge on
January 7, 2019, and erroneously marked filed January 9,
2018. The order in its entirety provides:
This cause came on to be heard this the 20th day of December,
2018, on the Motion to Amend Under Rule 59 and Motion
Requesting Stay of Proceedings Pending Appeal filed by
Respondent, Kymberly Ash. After hearing argument of counsel,
review of the entire file and for other good cause shown,
this Court finds that Respondent's motion was timely
filed and the date of the final Order is hereby November 14,
2018. Further, the Motion Requesting Stay of Proceedings
Pending Appeal is denied.
Mother filed a notice of appeal on February 5, 2019.
presents four issues for review on appeal, which we have
consolidated and restated as follows:
1. Whether the trial court erred in finding that a material
change in circumstance had occurred to justify changing the
child's primary residential parent from Mother to Father.
2. Whether the trial court erred in finding that a
modification of custody from Mother to Father was in the best
interest of the child.
following reasons, we cannot consider the issues presented
and must dismiss the appeal for lack of jurisdiction.
to Rule 13(b) of the Tennessee Rules of Appellate Procedure,
prior to addressing the merits of this appeal, we have
reviewed the appellate record to determine if this Court has
subject matter jurisdiction to hear this case. Jackson v.
Jackson, No. W2003-01397-COA-R3-CV, 2006 WL 1381604, at
*3 (Tenn. Ct. App. May 16, 2006). We are constrained to
consider whether Mother timely filed a notice of appeal,
although neither party raises the issue. See Scales v.
Winston, 760 S.W.2d 952, 953 (Tenn. Ct. App. 1988)
(explaining "[i]t is the duty of any court to determine
the question of its jurisdiction on its own motion if the
issue is not raised by either of the parties, inasmuch as any
judgment rendered without jurisdiction is a nullity.").
In order to conduct such an analysis, we must determine the
date of the final judgment.
Tennessee Rule of Civil Procedure 58
final judgment . . . is one that resolves all of the
parties' claims and leaves the court with nothing to
adjudicate." Ball v. McDowell, 288 S.W.3d 833,
836-37 (Tenn. 2009) (citing In re Estate of
Henderson,121 S.W.3d 643, 645 (Tenn. 2003)).
Additionally, for a judgment to be final and effective, it
must comport with the requirements in Tennessee Rule of Civil
Procedure 58. Fielder v. S. Health Partners, No.