                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE

   CHARLES KENNETH BRANCH v. VIRGINIA LOUISE THOMPSON

                An Appeal from the Circuit Court for Robertson County
       No. 7555  The Honorable Carol Catalano, Chancellor, sitting by interchange



                     No. M1998-00511-COA-R3-CV Decided July 7, 2000


         In this case, the minor children of the parties have been declared dependent and neglected
in juvenile court, and custody was awarded to Mother. Subsequently, the parties were divorced in
circuit court, and Mother was awarded custody and Father was ordered to pay child support. Mother
filed a petition in circuit court to hold Father in contempt for his failure to pay child support, and
Father filed a cross petition seeking, among other things, to change custody. At the conclusion of
an evidentiary hearing, the circuit court awarded custody of the children to Father. Mother has
appealed, and we vacate the order changing custody because of lack of subject matter jurisdiction.


Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court is Vacated and
Remanded.

CRAWFORD , P.J., W.S., delivered the opinion of the court, in which HIGHERS , J., and FARMER , J.,
joined.

R. Eddie Davidson, Nashville, for Defendant-Appellant

Charlotte U. Flemming, Springfield, for Plaintiff-Appellee

                                             OPINION

       Defendant, Virginia Louise Thompson (Mother), appeals the order of the circuit court
awarding custody of the parties’ two minor children to plaintiff, Charles Kenneth Branch (Father).

        Mary Frances Branch and Elizabeth Louise Branch, the twin daughters of Virginia Louise
Thompson and Charles Kenneth Branch were born on August 24, 1994. On August 1, 1995, the
Juvenile Court of Robertson County entered a consent decree finding that the children were
dependent and neglected, and that they suffered from shaken baby syndrome within a reasonable
degree of medical certainty. The juvenile court further found that Michelle Minnis, Ben Thompson,
Virginia Thompson’s minor son from a previous marriage, and Virginia Thompson each had sole
access to the twins when the injuries occurred. However, no determination was made as to who
caused the injury. Upon a finding that Virginia Thompson posed no threat to the safety of the
children, custody of the children was immediately returned to Mother. The consent decree provided
in pertinent part:

               3.     Virginia Thompson will closely monitor contact between her
               son, Ben Thompson, and her daughters, Mary F. Branch and
               Elizabeth L. Branch. Ben Thompson will continue in therapy for so
               long as his mother and therapist deem this appropriate. Ben
               Thompson will not be permitted unsupervised access to the children.

               4.       The Department of Human Services and Virginia
               Thompson jointly agree to supervise any child care arrangements
               made by Virginia Thompson. The Department of Human Services
               shall be responsible to inform Ms. Thompson of any adverse
               knowledge it gains concerning any child care provider for the
               children and will take reasonable precautions to assure the safety of
               the children at any licensed day care facility. The Department of
               Human Services will make visits with the regular child care provider
               at least quarterly in order to comply with this provision. Virginia
               Thompson will seek the advice of a DHS Social Worker any time she
               has any suspicion that the girls are being either neglected or abused.
               The DHS will monitor the family for a period of one year from the
               date of this decree.

The juvenile court’s consent decree contains a hand written addition by Judge Glover, who signed
the decree, which reads:

               7.          The Mother, Virginia Thompson, is not to remove the
               aforesaid minor children from the State of Tennessee until a final
               hearing is held in pending divorce action.

        Mother and Father were divorced pursuant to a divorce decree entered October 21, 1996 by
the Robertson County Circuit Court. Sole care, custody, and control of the minor children, Mary
and Elizabeth, was granted to Mother. On March 3, 1998, Mother filed a petition for contempt
alleging that Father failed to pay child support of $570.00 per month and medical expenses as
ordered by the final decree of divorce. In her petition, Mother also sought a judgment in the amount
of $2,500.00 for furniture which she alleged Father allowed to ruin.
Father filed an answer and counter petition denying that he was in contempt of court and averring
that since the entry of the final decree of divorce, there had been a substantial and material change
of circumstances which justified reducing child support. Father further averred that since the entry
of the final decree of divorce, there had been substantial and material changes of circumstance such
that a change of sole custody from Virginia Thompson to Charles Branch is in the best interests of
the minor children. Father alleged specifically that Mother continued to allow Ben Thompson
unrestricted access to the children in direct violation of the juvenile court’s consent decree of
August 1, 1995.

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        A trial on the merits was held on August 13, 1998. Mother testified that she lived in
Nashville and was employed with the Robertson County Board of Education as a teacher. She stated
that the children exhibited abnormal behavior after their visits with Father, who resides in Port St.
Joe, Florida Father testified that he complained to DHS because Mother continued to allow Ben
Thompson to remain unsupervised with the minor children, in violation of the consent decree issued
by Robertson County Juvenile Court. Father testified that he requested a change in custody because
Mother had shown a strong desire to prevent him and his family members from seeing the children.
Father also testified that he felt that the children’s health and safety were being jeopardized and that
his family could provide a more nurturing environment. He stated that he was concerned that the
children would be abused by the perpetrator that abused them before.

         On October 16, 1998, the court entered an order incorporating the court’s finding of facts,
as stated from the bench, which found a material change of circumstance and changed sole custody
of the children from Mother to Father. The court further ordered that Mother pay child support to
Father in the amount of $659.00 per month, except during her summer visitation period. The court
did not find Father in contempt for non-payment of the medical expenses paid by Mother, because
of her failure to establish the expense. The court ordered Mother to provide major medical insurance
for the minor children and ordered that the parties split any expenses not covered. Father was
awarded a judgment of one-half of his entire attorneys fee in the cause, in the amount of $1,732.50.
Father was ordered to pay Mother $300.00 per month toward his back due child support obligation
of $3,210.00, with accrued simple interest at the rate of 12% per annum beginning September 1,
1998. It is from this order that Mother appeals, raising five issues for review as stated in her brief:

                I.      Whether the trial court lacked subject matter jurisdiction to make a custodial
                        determination.
                II.     Whether the trial court abused its discretion in awarding custody to the father
                        in view of mother’s bundle of custodial rights which operate against third
                        persons.
                III.    Whether the trial court abused its discretion in its apparent punitive change
                        of custody decree from Mother to the Father.
                IV.     Whether the trial court abused its discretion in failing to conduct a
                        comparative fitness analysis and/or to apply T.C.A. § 36-6-106.
                V.      Whether the trial court erred in and/or abused its discretion in failing to
                        include Father’s deposition in the record in this appeal.

        We address only issue I herein, as our ruling on that issue renders issues II - V moot. This
issue is controlled by T.C.A. § 37-1-103 (Supp. 1999) which provides in pertinent part:

                37-1-103. Exclusive original jurisdiction. - (a) The juvenile court
                has exclusive original jurisdiction of the following proceedings,
                which are governed by this part:

                (1) Proceedings in which a child is alleged to be delinquent, unruly
                or dependent and neglected, or to have committed a juvenile traffic

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               offense as defined in § 37-1-146;

                               *              *               *

               (c) When jurisdiction has been acquired under the provisions of this
               part, such jurisdiction shall continue until a person reaches the age of
               eighteen (18), except that the court may extend jurisdiction for the
               limited purposes set out in § 37-1-102(b)(4)(B) until the person
               reaches the age of nineteen (19).

                               *              *               *

        Although a child custody decree in a divorce case remains in the control of the divorce court
and subject to later modification by virtue of T.C.A. § 36-6-101 (Supp. 1999), the statute explicitly
states:

               36-6-101. Decree for custody and support of child - Enforcement
               - Juvenile court jurisdiction - Presumption of parental fitness -
               Educational seminars.

                               *              *               *

               (c) Nothing in this chapter shall be construed to alter, modify or
               restrict the exclusive jurisdiction of the juvenile court pursuant to §
               37-1-103.

                               *              *               *

        In State of Tennessee Dept. of Human Services v. Gouvitsa, 735 S.W.2d 452 (Tenn. Ct.
App. 1987), this Court held that after a petition is filed in juvenile court to declare children
dependent and neglected, the juvenile court has exclusive jurisdiction regarding the custody of the
children and any subsequent order concerning custody entered by the court having jurisdiction over
the original divorce proceeding is void. To the same effect, see Kidd v. State ex. rel Moore, 207
Tenn. 244, 338 S.W.2d 621 (1960) and Marmino v. Marmino, 34 Tenn. App. 352, 238 S.W.2d 105
(1950).

        Father asserts that the juvenile court matter was fully disposed of by entry of the consent
decree; therefore, the juvenile court no longer had the exclusive subject matter jurisdiction to make
the custody determination. We must respectfully disagree. In Green v. George, 99 WL 252710
(Tenn. Ct. App. 1999), this Court stated:

               Section 37-1-103 sets forth only one manner by which the juvenile
               court’s exclusive jurisdiction may be relinquished, that being the
               child’s attainment of the age of majority. See Tenn.Code. Ann. § 37-

                                                  -4-
                1-103(c).

Id. at **4.

        Father next asserts that the juvenile judge, by adding the handwritten paragraph in his
ordered, expressly deferred subject matter jurisdiction to the trial court. We must respectfully
disagree. Virtually the same argument was made before this Court in Hicks v.Hicks, 1994 WL
108896, No. 01A01-9309-CH-00417 (Tenn. Ct. App. 1994), where the father asserted that the order
transferring the case for consolidation with the chancery court proceeding constituted the consent
of the juvenile court for the chancery court to take jurisdiction. In response to the father’s assertion,
we said:

                This precise question was addressed by the court in Simpkins v.
                Greer, No. 01A-01-9202-CH0060, 1993 WL 18311 (Tenn. App. M.S.
                jan. 29, 1993). In Greer, Judge Cantrell, speaking for the Court, said:

                        It is clear that the parties cannot confer subject matter
                jurisdiction on the court by consent. See Curtis v. Garrison, 211
                Tenn. 339, 346, 364 S.W.2d 933, 936 (1963); James v. Kennedy,
                174 Tenn. 591, 595, 129 S.W.2d 215, 216 (1939). We think it is
                equally clear that a court cannot confer subject matter jurisdiction on
                another court. Tenn. Const. art. 6, § 1 grants the legislature the power
                to determine how many and what kinds of courts are required for the
                administration of justice and the power to fix the limits of each court's
                jurisdiction. See State ex rel. Ward v. Murrell, 169 Tenn. 688,
                692, 90 S.W.2d 945, 946 (1936). Courts possess "only such
                jurisdictional powers as are directly, or indirectly, expressly or by
                implication, conferred upon [them] by the constitution or legislation
                of the sovereignty on behalf of which [they] function."               20
                Am.Jur.2d Courts § 91 (2d ed.1965); see also Coonradt v. Sailors,
                186 Tenn. 294, 305, 209 S.W.2d 859, 863 (1948); McHenry's
                Lessee v. Wallen, 10 Tenn. 441, 444 (1830). (Emphasis in original).

                Simkins, 1993 WL 18311 at *3.

Hicks, WL 108896 *2 (Tenn. Ct. App. 1994).

       The Robertson County Circuit Court has no jurisdiction over the issue of custody of the
children; therefore, the order appealed from as it deals with custody is void. State of Tennessee
Dept. of Human Services v. Gouvitsa, 735 S.W.2d 452, 457 (Tenn. Ct. App. 1987).

        Accordingly, the order as it deals with custody and the obligations imposed upon Mother as
the noncustodial parent is vacated. The previous order of the circuit court establishing the
obligations of Father as the noncustodial parent shall remain in effect. The case is remanded to the

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circuit court for such further proceedings as are necessary. The question of custody remains in the
Juvenile Court of Robertson County. Costs of appeal are assessed against the appellee, Charles
Kenneth Branch.




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