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Clarke v. Ash

Court of Appeals of Tennessee, Nashville

December 13, 2019

DOMINIQUE CLARKE
v.
KYMBERLY ASH

          Session November 6, 2019

          Appeal from the Juvenile Court for Montgomery County No. 14-JV-852, PL-CV14-2361 Tim Barnes, Judge

         This 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.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          Paisley P. Anderson, Clarksville, Tennessee, for the appellant, Kymberly Anne Ash.

          Adrian R. Bohenberger and Kevin C. Kennedy, Clarksville, Tennessee, for the appellee, Dominique Clarke.

          Carma 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 [1]

          CARMA DENNIS MCGEE, JUDGE

         I. Facts & Procedural History

         Dominique Clarke ("Father") and Kymberly Ash ("Mother") are unmarried parents of an eight-year-old daughter[2] ("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.[3] 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.

         The 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, 2018.

         The 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.

         On 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 order.

         On 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.

         A 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.

         II. Issues Presented

         Mother 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.

         For the following reasons, we cannot consider the issues presented and must dismiss the appeal for lack of jurisdiction.

         III. Discussion

         Pursuant 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.

         A. Tennessee Rule of Civil Procedure 58

         "A 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. ...


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