                       IN THE COURT OF APPEALS OF TENNESSEE
                                    AT JACKSON
                                JULY 18, 2007 SESSION

           DONALD T. ARENDALE v. GLENDA S. ARENDALE (SCHUETT)

                 Direct Appeal from the Chancery Court for Shelby County
                         No. CH-00-1466D. J. Alissandratos, Judge

                                ___________________________

                  No. W2005-02755-COA-R3-CV - Filed February 22, 2008
                            ____________________________


The trial court entered an order modifying its earlier parenting plan. After the Court’s judgment,
the mother filed a motion attacking the jurisdiction of the Court to modify the prior order. The
trial court overruled the motion. On appeal, we find that neither the child nor either of the
parents have resided in Tennessee since 2002. Therefore, the trial court did not have subject
matter jurisdiction to modify its prior order. We reverse and dismiss.



TENN . R. APP. P.3; Appeal as of Right; Judgment of the Chancery Court Reversed

BEN H. CANTRELL, SP .J., delivered the opinion of the court, in which ALAN E. HIGHERS , P.J.,
W.S., and DAVID R. FARMER , J., joined.

James F. Arthur, III, Memphis, TN, for Appellant

Rachael E. Putnam, Memphis, TN, for Appellee


                                 I. PROCEDURAL HISTORY

              The parties, Glenda S. Arendale, Appellant and Donald T. Arendale, Appellee,
       were divorced by the Chancery Court of Shelby County in 2001. The parenting plan
       adopted by the court designated the mother as primary residential parent of the parties’
       four-year-old son.

              In 2004, the father filed a petition seeking custody of the child. The mother filed
       an answer and counter-petition seeking to restrict the father’s parenting time. After a
       hearing, the Court entered an order on August 26, 2005 modifying the parenting plan.
       Both parties appeared before the Chancellor seeking a modified order, which the Court


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entered on September 12, 2005. The order designated the father as primary residential
parent.

       The mother filed a motion for a new trial on October 12, 2005 alleging that the
Court lacked subject matter jurisdiction since both parties and the child had been
residents of Mississippi since 2002. The Court overruled the Motion on November 28,
2005 and the mother filed her notice of appeal on the same day.


                        II. IS THE APPEAL TIMELY?

       At oral argument, the appellee moved to dismiss the appeal because the order of
August 26, 2005 had become final before any post-trial motions or the notice of appeal
had been filed.

        The Court overrules the motion. Rule 59.05 of the Tennessee Rules of Appellate
procedure provides that the trial court on its own initiative may alter or amend a
judgment or order a new trial within thirty days after the entry of the original judgment.
The courts have almost universally recognized that a judgment remains within the control
of the trial judge until it has been on file for thirty days. Rule 59.05 makes it clear that
the court on its own motion may alter or amend the judgment or order a new trial.

        Further, in this case, the parties appeared before the Chancellor on September 7,
2005 seeking a modification of the August 26 order. Although a written motion had not
been filed, the Court retained the power to enter a modified judgment. That judgment
was entered on September 12, 2005, well within the thirty-day period from the August 26
order. After that, the appellant proceeded in a timely fashion to perfect the appeal.


III.   DID THE TRIAL COURT HAVE SUBJECT MATTER JURISDICTION?

        The appellant moved for a new trial on October 12, 2005 alleging that both
parties and the child had been residents of Mississippi since 2002. The trial court
overruled the motion on November 28, 2005, holding that the motion was untimely
because it was not filed within thirty days of the August 26, 2005 order.

       For the same reason discussed in Part I of this Opinion, we respectfully disagree
with the trial judge. The motion for a new trial was filed within thirty days of the
September 12, 2005 Order. Therefore, the motion was timely filed.

        Turning to the merits of the motion, we note that it attacks the subject matter
jurisdiction of the trial court. As a general rule, subject matter jurisdiction may be raised
at any time by the parties or by the appellate court sua sponte on appeal. County of
Shelby v. City of Memphis, 365 S.W.2d 291 (Tenn. 1963).


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       The Court’s subject matter jurisdiction to modify its own child custody order is
governed by Tenn. Code Ann. § 36-6-217. That section provides that a court of this state
which has made a child-custody determination has exclusive, continuing jurisdiction
(except for temporary emergency orders, Tenn. Code Ann. § 36-6-219) over the
determination until:

       (1) a court of this state determines that neither the child, nor the
           child and one (1) parent, nor the child and a person acting as a
           parent have a significant connection with this state and that
           substantial evidence is no longer available in this state
           concerning the child’s care, protection, training, and personal
           relationship; or

       (2) a court of this state or a court of another state determines that
           the child, the child’s parents, and any other person acting as a
           parent do not presently reside in this state.

The official comments to Tenn. Code Ann. § 36-6-217 provide as follows:

              This section provides the rules of continuing jurisdiction
       and borrows from UIFSA as well as recent UCCJA case law. The
       continuing jurisdiction of the original decree State is exclusive. It
       continues until one of two events occurs:

                1. If a parent or a person acting as a parent remains in the
       original decree State, continuing jurisdiction is lost when neither
       the child, the child and a parent, nor the child and a person acting
       as a parent continue to have a significant connection with the
       original decree State and there is no longer substantial evidence
       concerning the child’s care, protection, training and personal
       relations in that State.
                In other words, even if the child has acquired a new home
       State, the original decree State retains exclusive, continuing
       jurisdiction, so long as the general requisites of the “substantial
       connection” jurisdiction provisions of Section 201 are met. If the
       relationship between the child and the person remaining in the
       State with exclusive, continuing jurisdiction becomes so attenuated
       that the court could no longer find significant connections and
       substantial evidence, jurisdiction would no longer exist. The use
       of the phrase “a court of this State” under subsection (a)(1) makes
       it clear that the original decree State is the sole determinant of
       whether jurisdiction continues. A party seeking to modify a
       custody determination must obtain an order from the original
       decree State stating that it no longer has jurisdiction.


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                        2. Continuing jurisdiction is lost when the child, the
               child’s parents, and any person acting as a parent no longer reside
               in the original decree State. The exact language of subparagraph
               (a)(2) was the subject of considerable debate.
                        Ultimately the Conference settled on the phrase that a
               “court of this State or a court of another State determines that the
               child, the child’s parents, and any person acting as a parent do not
               presently reside in this State” to determine when the exclusive,
               continuing jurisdiction of a State ended. The phrase is meant to be
               identical in meaning to the language of the PKPA which provides
               that full faith and credit is to be given to custody determinations
               made by a State in the exercise of its continuing jurisdiction when
               that “State remains the residence of.... “The phrase is also the
               equivalent of the language “continues to reside” which occurs in
               UIFSA § 205(a)(1) to determine the exclusive, continuing
               jurisdiction of the State that made a support order. The phrase
               “remains the residence of” in the PKPA has been the subject of
               conflicting case law. It is the intention of this Act that paragraph
               (a)(2) of this section means that the named persons no longer
               continue to actually live within the State. Thus, unless a
               modification proceeding has been commenced, when the child, the
               parents, and all persons acting as parents physically leave the
               State to live elsewhere, the exclusive, continuing jurisdiction
               ceases.
                        The phrase “do not presently reside” is not used in the
               sense of a technical domicile. The fact that the original
               determination State still considers one parent a domiciliary does
               not prevent it from losing exclusive, continuing jurisdiction after
               the child, the parents, and all persons acting as parents have
               moved from the State. . . .Jurisdiction attaches at the
               commencement of a proceeding. If State A had jurisdiction under
               this section at the time a modification proceeding was commenced
               there, it would not be lost by all parties moving out of the State
               prior to the conclusion of a proceeding. . .

Tenn. Code Ann. § 36-6-217 Cmt. 1,2 (emphasis supplied).

       The proof at the original hearing showed that the father moved to Sardis, Mississippi
soon after the original divorce. At the time of the hearing below, he had lived there for four and
one-half years. Father remarried in March of 2004. The mother and child moved to Brandon,
Mississippi in November of 2002 to live with Mother’s boyfriend. They moved to the Jackson,
Mississippi area in October of 2003. Mother also remarried in April of 2004.

       After mother filed her motion for a new trial, the parties and the court sparred over how
to address the problem until the court entered an order on April 3, 2006 granting the mother an

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evidentiary hearing to determine the mother’s residence as of July 15, 2004 when the petition
and answer in this cause were filed. At the hearing on May 25, 2006, the mother testified that on
the critical date she and the child lived with her new husband in Brandon, Mississippi, where
they had lived since November of 2003.

       At the time the mother moved to Mississippi, she still had a house in Memphis, a
Tennessee driver’s license and had her car registered in Tennessee. The record does not show
when, or if, that changed.

       The trial court made the following finding of fact after the May 25, 2006 hearing:

                      THE COURT: Well, first off, the Court is limited to what
              the Court has previously issued in its order of 3 April of this year,
              the evidence to the issue of the respondent’s residency status at the
              time of the filing of the parties’ respective petitions in July of
              2004. The Court will make a finding of fact on that.
                      The Court finds that Ms. Schuett owned a home here in
              Tennessee, chose to retain a driver’s license which violated, under
              her theory of having a domicile down in Mississippi, the law of
              Mississippi, which is that you, after a certain period of time, must
              have a driver’s license there. She continued to keep car
              registration in Tennessee, and that violates also, if she indeed was
              domiciled in Mississippi, the Mississippi law of car registration
              down there because they have a wheel tax. She did not pay a
              wheel tax.
                      She had Tennessee voter registration up here. She
              indicated that she didn’t vote much, but nevertheless, she didn’t
              change her voter registration. She was for some time -- for some
              indefinite period of time from November of 2002, in a tenuous
              status as a guest in the home of, at one point, a paramour in
              Mississippi -- not the greatest condition of a domicile. But she
              was also -- and she did pay income tax because she was employed
              in Mississippi, and I’m not familiar with the law down there on the
              obligation on employers on that.
                      But the thing that the Court found the most interesting was
              I could not find from her testimony exactly at what point in time it
              was that she ceased having the child in question at the day care in
              Tennessee. Her petition -- these petitions were filed in July of
              2004, and yet her response is referring to things that -- if indeed it
              was November 2002 that she removed the child from this Court’s
              jurisdiction, why would she be talking about things at the day care
              center almost two years earlier? I don’t know what she was trying
              to do with Mississippi, but to call it a domicile, in this Court’s
              opinion, I cannot conclude that.


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      This finding of fact comes to this Court with a presumption of correctness. Rule 13(d)
Tenn. R. App. Proc. This Court, however, may reverse the trial judge if the evidence
preponderates against the finding.

       We think the preponderance of the evidence clearly shows that both parties and the child
had been residents of Mississippi since the mother and child moved in November of 2002. The
father moved to Mississippi a year before that. There is no proof that any of them have lived in
Tennessee since that time. The trial court, therefore, did not have the power to modify its prior
custody order.

        As this Court said in its prior case of Foster v. Collins, No. W2004-01959-COA-R3-CV
(Filed in Jackson Dec. 27, 2005):

               “A court acting without jurisdiction is acting without authority of
               law, and its decrees are absolutely void.” Sheffy v. Mitchell, 142
               Tenn. 48, 215 S.W. 403, 404 (Tenn. 1919); See also County of
               Shelby v. City of Memphis, 211 Tenn. 410, 365 S.W.2d 291, 292
               (Tenn. 1963) (noting that an order entered without subject matter
               jurisdiction is a nullity); Mora v. Mora, No. W1999-02483-COA-
               R3-CV, 2001 Tenn. App. LEXIS 422, (Tenn. Ct. App. June 4,
               2001) (“Any order entered by a court without subject matter
               jurisdiction is a nullity and is therefore unenforceable.”); Scales v.
               Winston, 760 S.W.2d 952, 953 (Tenn. Ct. App. 1988) (“It is the
               duty of any court to determine the question of its subject matter
               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.”) “If the Chancery Court had no
               jurisdiction of the subject matter in this case, the only decree that
               could be entered by that Court or this Court would be a dismissal
               of the suit.” Tritschler v. Cartwright, 46 Tenn. App. 662, 333
               S.W.2d 6, 8 (Tenn. Ct. App. 1959) (citations omitted).

               Foster v. Collins, at *5, 9-10.

        We recognize that two years have passed since the trial court changed custody to the
father, and we hesitate to add to the instability in this child’s life. But a void judgment has no
validity and neither the Court nor the parties can breathe life into it.

        The judgment of the Court below is reversed and the cause is dismissed. We remand the
case to the Chancery Court of Shelby County for the collection of the costs in that court. Tax the
costs on appeal to Donald T. Arendale, Appellee.


                                                 ___________________________
                                                 BEN H. CANTRELL, SP.J.

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