                                                                                          02/02/2017




                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                January 17, 2017 Session

                      SIMINDER KAUR v. VANEET SINGH

                   Appeal from the Circuit Court for Shelby County
                    No. CT-004060-16 Robert L. Childers, Judge
                      ___________________________________

                           No. W2016-02058-COA-R10-CV
                       ___________________________________


This is an interlocutory appeal limited to the issue of whether the orders of an Indian
court regarding matters pending in India is entitled to full faith and credit, such that this
state’s trial court lacks jurisdiction over custody of the minor child pursuant to the
Uniform Child Custody Jurisdiction and Enforcement Act. The mother, an Indian citizen
but permanent resident of the United States, filed an action in India seeking the return of
her minor son. She contends that her son, a citizen of the United States, is being detained
illegally in India by her husband and his family. The Indian court ruled that the child
should remain with the paternal grandparents in India at this time. The mother,
thereafter, filed an action for divorce in Shelby County. After a hearing, the state trial
court ordered, inter alia, that the father, also an Indian citizen but permanent resident of
the United States, return the child to Tennessee within seven days. Upon the trial court’s
denial of the father’s request for an interlocutory appeal pursuant to Rule 9, the father
sought a Rule 10 extraordinary appeal of the trial court’s ruling. We find that the appeal
was improvidently granted. Accordingly, we decline to address the issue presented and
dismiss the appeal.

                      Tenn. R. App. P. 10 Extraordinary Appeal;
                             Dismissed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Aubrey L. Brown, Jr. and Leigh-Taylor White, Memphis, Tennessee, for the appellant,
Vaneet Singh.

Melinda Plass Jewell and Sarah Carter, Memphis, Tennessee, for the appellee, Siminder
Kaur.
                                             OPINION

                                        I. BACKGROUND

        This appeal arises from a divorce proceeding and involves the trial court’s subject
matter jurisdiction. The parties in this case are Siminder Kaur (“Mother”) and Vaneet
Singh (“Father”). They are of Indian descent and were married on March 9, 2008, in
Mali, India. Both parties have retained their Indian citizenship, but they became
permanent residents of the United States in 2012. The parties’ permanent residence is
located in Collierville in Shelby County, Tennessee. Mother previously worked for St.
Jude for four years; for the last two years she has worked at International Paper in
Memphis. Father, who works for Medtronic as an engineer, travels back and forth from
the United States to India as his work dictates. Their minor son is Anhad Singh (“the
Child”), born in Germantown, Tennessee. The Child, therefore, is a citizen of the United
States.

        In October 2015, the parties, who had been experiencing marital issues, traveled to
India for a family wedding. Once in India, Father proposed that the Child be left with his
parents there for a short period of time in order to allow the parties an opportunity to
work through their marital difficulties. Mother initially refused the idea, but she finally
agreed in an attempt to save her marriage. According to Father, on November 24, 2015,
he and Mother signed a letter to the Bureau of Immigration in India in the presence of an
Executive Magistrate giving written permission to the paternal grandfather “to submit
forms, applications, and other necessary documents” so that the Child could receive
status as a registered Overseas Citizen of India (“OCI”).1

       Soon after departing India without the Child, Mother began to question the
decision. She sent multiple text messages and emails to Father expressing her concern
and also her displeasure with the fact that he did not exhibit a desire to save the marriage.
Over time, she concluded that leaving her son behind in India so that the couple could
concentrate on the marriage had been a ruse to separate her from the Child.

       In April 2016, Mother purchased airline tickets for herself and the Child and
traveled to Mohali, Punjab, India to retrieve the Child from the paternal grandparents.
Mother contends that she was refused access to the Child and learned that Father’s family
had filed complaints against her before her arrival. She asserts that when she attempted
to enlist the help of local law enforcement to gain access to the Child and his United
States passport, she was denied help.


       1
           On February 29, 2016, a Certificate of Registration was issued to the Child.
                                                 -2-
        While in India, in an attempt to gain custody of the Child, Mother filed a criminal
habeas corpus petition for wrongful detention on April 26, 2016. Father describes the
litigation history in India as follows:

             1. The parties in this divorce action have been embroiled in
             numerous legal proceedings in India since April of 2016, all
             but one of which have been initiated by [Mother]. . . .

             a. On April 26, 2016, [Mother] filed a Habeas Corpus
             Petition in the High Court of Punjab and Haryana . . . .
             wherein [Mother] requested that she be awarded custody of
             the parties’ minor child. . . . .

             b. On April 29, 2016, [Mother] filed a petition with a
             separate trial court at her native place of Ludhiana, Punjab,
             India, asking for grant of maintenance under Section 125
             Code of Criminal Procedure of India, which provides for a
             grant of maintenance to a spouse under certain specific
             conditions arising from marital disputes. This matter is still
             pending in India.

             c. On May 2, 2016, [Mother] filed a complaint/application
             for Protection Order, Residence Order, Order for Monetary
             relief and Compensation Order under Protection of Women
             from Domestic Violence Act of India, before the trial court at
             Ludhiana, Punjab, India, whereby she sought to restrain
             [Father] and other “respondents from committing any act of
             domestic violence, from alienating residential House No.
             4045 . . .” and from alienating or transferring the other
             properties mentioned therein; [a] residence order for
             arranging separate accommodation; [and] monetary relief . . .
             . [Father] appealed this Complaint to High Court of Punjab
             and Haryana and received a stay on all proceedings of the
             trial court.

             d. On May 3, 2016, [Mother] filed a police complaint with
             the Ludhiana Police Department on Matrimonial disputes
             against [Father] pursuant to the Indian Criminal Act. . . . This
             was subsequently found to be without merit and the matter
             was closed under orders of Commissioner of Police . . . .

             e. On May 16, 2016, [Mother] also filed a civil suit in a trial
             court in Mohali, Punjab, India, for declaration and permanent
                                         -3-
             injunction against [Father] and his parents and his brother
             seeking a conveyance to her of certain rights she alleges in
             and to [Father]’s parents’ house at Mohali, Punjab, India. . . .
             This matter is still pending in trial court in Mohali, India.

             f. On June 15, 2016, [Mother] filed a complaint under the
             Protection of Women from Domestic Violence Act of India
             wherein she requested “custody/temporary custody/interim
             custody of the minor Anhad Singh” or in the alternative
             “frequent visitation rights . . . to meet her child in isolation at
             any place of her choice and convenience.” . . . [Father] has
             contested [Mother]’s complaint filed under the Domestic
             Violence Act, and he received a stay of those proceedings in
             the trial court from the High Court of Punjab and Haryana,
             Chandigarh.

             g. . . . [Father] finally filed a petition for divorce under the
             Hindu Marriage Act in the District Court of Chandigarh,
             India, a court of competent jurisdiction, on July 30, 2016. . . .
             [Father]’s complaint for Divorce was accompanied by his
             Application for a restraining order seeking to enjoin [Mother]
             from publishing details concerning their matrimonial life and
             the care, control and custody of the minor child to the press or
             through social media. [Mother] filed a Reply to [Father]’s
             Application. On August 29, 2016, [Mother] filed a Petition
             for maintenance and litigation expenses pendent lite in these
             divorce proceedings in India. [Mother] has also participated
             in mediation proceedings in India pursuant to the divorce
             proceedings pending there.

(Internal citations omitted). By the actions described above, Father asserts that Mother
has voluntarily availed herself of the jurisdiction of the Indian courts. He contends that
she did not object to the jurisdiction of the Indian Court to hear the divorce action now
pending in India. Mother responds that she contested the divorce and jurisdiction.

        In the habeas corpus proceeding, the Indian court issued various orders concerning
visitation with the Child. On August 3, 2016, the court entered an order directing the
paternal grandparents to bring the Child to a “Mediation Centre” on August 4, 5, and 8,
2016 for Mother to exercise visitation for two hours each day. On August 9, 2016, the
court entered an order requiring the parties to attend mediation on October 8, 2016, and
awarding Mother a visitation period with the Child on his birthday. When Mother filed
an “Application under Section 482” for interim custody pending the habeas corpus
matter, her application was denied with a finding that “the Child has been in the safe
                                           -4-
custody of his grandparents for the last eight months and is of a very tender age to
experience shifting of residence during the pendency of this petition.”

       Tennessee Code Annotated Section 36-6-205(4) defines a “child custody
proceeding” as any “proceeding in which legal custody, physical custody, or visitation
with respect to a child is an issue,” and specifies that it “includes a proceeding for
divorce, . . . abuse, . . . protection from domestic abuse in which the issue may appear.”
The comments to the act reflect that “[p]roceedings that affect access to the child are
subject to this act.” See Tenn. Code Ann. § 36-6-205.

        Father contends that India has properly assumed jurisdiction of the Child in
compliance with the requirements of the UCCJEA and has jurisdiction to make the initial
custody determination. He asserts that India is the “home state” upon the commencement
of the custody proceedings there. See Tenn. Code Ann. § 36-6-216(A)(1) (“a court of
this state has jurisdiction to make an initial custody determination only if: (1) This state
is the home state of the child on the date of the commencement of the proceeding, or was
the home state of the child within six (6) months before the commencement of the
proceeding and the child is absent from this state but a parent . . . continues to reside in
this state[.]”). Father contends that pursuant to section 36-6-208 of Tennessee’s version
of the UCCJEA, a court of this state shall treat a foreign country as if it were a state of
the United States for the purpose of applying the act. A child custody determination
made in a foreign country under factual circumstances in substantial conformity with the
jurisdictional standard of this part must be recognized and enforced. According to
Father, therefore, we are constrained to recognize and enforce the orders of the Indian
court. Additionally, Father argues that under the “Prior Suit Pending” doctrine, the
divorce action before the state court should be dismissed or stayed pending the resolution
of the pending divorce proceedings in India. The doctrine provides that where “two
courts have concurrent jurisdiction over a matter, the first of those courts to acquire
jurisdiction takes exclusive jurisdiction over it. Any subsequent actions must, therefore,
be dismissed.” Estate of McFerren v. Infinity Transp., LLC, 197 S.W.3d 743 (Tenn.
2006). Father asserts that the parties are citizens of India and Sikhs by religion and are
governed by Hindu law. They were married in India and their marriage was registered
under the Hindu Marriage Act of 1955. Father opines that the matrimonial rights must be
adjudicated pursuant to the Hindu Marriage Act.

       Father, in his divorce petition filed in India on June 30, 2016, acknowledged that
he has been residing in Collierville, is a resident of the United States, and that “ultimately
[the Child] will come to USA.” However, he attaches great significance to the fact that
“[b]y virtue of being born in the United States to . . .Indian citizen parents, Anhad is a
citizen of the United States and an Overseas Citizen of India (“OCI”), a status granted to
him by the Republic of India by virtue of his Indian descent.” Mother contends that the
OCI card does not result in Indian citizenship for the Child, as India does not allow dual
citizenship. As a matter of fact, India expressly disallows dual citizenship per the
                                              -5-
Constitution of India. In order to obtain Indian citizenship, a person must first renounce
their foreign citizenship. Mother states that the OCI card was introduced in India to
facilitate hassle-free travel for non-resident Indians or people of Indian descent to travel
to and from India. It serves as a multiple-entry lifelong VISA. Only a foreign national
can get an OCI card. Accordingly, the Child is not a citizen of India.

        Mother argues that no court in India has or had subject matter jurisdiction over the
issue of the Child’s custody under Indian law or the UCCJEA and that any orders issued
by the Indian courts regarding custody or visitation with the Child are null and void. She
posits that according to the law in India, only a Guardian Judge having jurisdiction under
the Guardian and Wards Act of 1890 and the Hindu Minority and Guardianship Act of
1956 has the jurisdiction and authority to determine custody cases after full evidentiary
hearings. The habeas corpus proceedings in the High Court of Punjab and Haryana
criminal proceeding in India are summary and emergency in nature, where only the
legality of the detainment of a child is examined on the basis of affidavits only. No
evidentiary hearings are held and no final determination of custody is made, as the court
does not have jurisdiction to render custody decisions.2 Mother further contends that
domestic violence and divorce courts in India do not determine custody issues or make
permanent custody rulings. In the domestic violence court in India, she asked for relief
by way of injunction enjoining Father and his family from disposing of assets located in
India that are jointly hers along with a request for visitation with the Child. Mother does
not consider these to be family law matters -- only temporary custody/visitation issues
that can be addressed until a court with proper jurisdiction becomes involved. Neither
Mother nor Father has filed any custody proceeding in India to determine custody of the
Child.

       Additionally, arguing a provision of the UCCJEA that would negate India’s
subject matter jurisdiction pursuant to the act, Mother asserts that the country cannot be
considered the Child’s home state because it, either through law or the culture, does not
protect the human and civil rights of individuals.3 She declares further that the paternal
grandparents are elderly and not fit to care for the Child.

       The Indian court observed on September 1, 2016, that Mother was seeking
“interim custody of the minor child . . . as [to] the main petition [habeas corpus] . . . fixed
for [February 24, 2017].” The Indian court ruled: “Keeping in view the fact that the
Child has been in the Safe custody of his grandparents for the last eight months and is of

       2
          Mother contends that Father admits in his response filed in the habeas corpus
proceeding that the court has no custody jurisdiction and that there have been no evidentiary
hearings on the issue of custody of the Child.
        3
          Mother’s counsel argues that if a foreign country does not protect the basic human
rights of individuals and persons, then the U.S. court cannot look at that country as an actual
state.
                                             -6-
a very tender age to experience shifting of residence during the pendency of this petition,
no ground is made out to handover the custody of minor child to [Mother].” The court
found that Mother had left the Child in India of her own free will and had authorized the
paternal grandparent to obtain the OIC papers. Thus, her contentions regarding the
Child’s presence in India have not been accepted by the Indian court.

       Mother filed her complaint for divorce, for extraordinary relief and petition for
order of protection in the Circuit Court of Tennessee for the Thirtieth Judicial District at
Memphis, Shelby County, Tennessee, on October 4, 2016. In her complaint, Mother
states that the parties’ child’s permanent residence and home is in Shelby County,
Tennessee. That the Child is a citizen of the United States and his birth certificate
showing that he was born in the United States and is a United States citizen is included
with the confidential information required at the filing of the complaint.

        At a hearing on October 4, 2016, the state trial court found that it had jurisdiction
and issued its initial ruling requiring Father to return the Child to the United States and
the jurisdiction of the court within seven days and granting Mother temporary custody
until the hearing set for October 27, 2016. The court denied Father’s oral request for an
interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.
The court opined as follows:

              THE COURT: . . . I don’t know of a reason why he shouldn’t
              be ordered to return this child who is a US citizen, to this
              jurisdiction, and that’s what I’m going to order. . . . I don’t
              know why India has jurisdiction over the child who is a
              United States citizen, and not a citizen of India. . . . I’m
              ordering that he return the child to this jurisdiction, the
              jurisdiction of this Court.

Two days later, the trial court provided:

              As I understand the facts in this case, there is no dispute that
              neither parent is living in India where the child is. The child,
              as I understand it – there’s no dispute – is with the paternal
              grandparents not with a natural parent. That’s one of the
              reasons why I had ordered Mr. Singh to return the child to
              this jurisdiction because, as I understand the law of
              Tennessee, the law prefers that a child be with a parent not a
              grandparent. And Mother, as I understand the facts in this
              case, originally agreed for the child to go over there she says
              under false pretenses. I’ll wait and hear the evidence on – on
              that. But it doesn’t seem to be a dispute that she’s now
              changed her mind and wants the child back over here
                                             -7-
             presumably with both parents who are living here in
             Tennessee within this jurisdiction, within the jurisdiction of
             this court and, for that reason, I’m not going to reconsider. I
             want the child returned within seven days to this jurisdiction
             back to the natural parents.

                                        ***
             You know, if we get into a battle of courts in Tennessee and
             India, then, you know, so be it; we’ll let the court system
             decide that.

       The state trial court apparently concluded that Tennessee has home state
jurisdiction because the Child is a United States citizen, his parents are permanently
residing in the United States in Tennessee, his stay in India was not intended to be
permanent, and he is being held in India against Mother’s wishes and under false
pretenses not in substantial conformity with the UCCJEA. Mother’s counsel told the
court:

             MS. JEWELL: . . . Husband filed a divorce case there. And
             it’s my understanding – I spoke to a lawyer today. In India
             the Divorce Court does not handle custody issues. And if
             wife does not agree to a divorce, he can’t get a divorce, he
             can’t get a divorce there. She is not litigating there. Now,
             Husband sent a letter to wife – his lawyer did, on Sept. 30,
             saying he’s moving back to the marital residence and you
             need to move out or somebody needs to move out. You need
             to pay if you’re going to stay there. His decision is to come
             back here. He’s always been in the United States moving
             around, but to come back to Collierville to live. She is not
             litigating the divorce. She made an appearance and contested
             the divorce, and contested jurisdiction. She did ask for
             attorney fees and travel expenses in the form of maintenance
             in the divorce in India.

      In an order filed October 14, 2016, the Court of Appeals ordered as follows:

             On October 11, 2016, Applicant Vaneet Singh filed an
             application for an extraordinary appeal, pursuant to Rule 10
             of the Tennessee Rules of Appellate Procedure. Also,
             Applicant requested that the Court stay all trial court
             proceedings pending a resolution of the prior proceedings
             commenced in India and pending determination of the issues
             before this Court. Upon due consideration, the Court hereby
                                          -8-
              grants the application.     Review shall be limited to the
              following issue:

              Are the orders of the Indian Court in the matters pending in
              India entitled to full faith and credit, such that the trial court
              lacks jurisdiction over custody of the minor child, under the
              Uniform Child Custody Jurisdiction and Enforcement Act
              (“UCCJEA”)?

                                             ***
              Pending determination of the issues before this Court, the trial
              court proceedings regarding custody of the minor child are
              hereby stayed, including the trial court’s order that Applicant
              return the child to this jurisdiction. . . .

        The Indian court interpreted Mother’s actions as forum shopping. It noted that
after Mother failed to regain custody of the Child, she returned to Tennessee and filed for
divorce. The court observed that Mother “without affording [Father] any opportunity to
counter the allegations” made in her divorce complaint “and to put forth his case
especially the pendency of the aforesaid main petition” before the Indian court, had the
Tennessee court direct Father “to bring the child … back to United States in seven days .
. . .” The Indian court declared that Mother should be “restrain[ed] . . . from indulging
in[] forum shopping and . . . invok[ing] the jurisdiction of any other court for the same
relief, which she has prayed for in the present petition.”


                                         II. ISSUE

       We limited review to the following issue:

              Are the orders of the Indian court in the matters pending in
              India entitled to the full faith and credit, such that the trial
              court lacks jurisdiction over custody of the minor child, under
              the Uniform Child Custody Jurisdiction and Enforcement
              Act.


                             III. STANDARD OF REVIEW

       Whether a court has jurisdiction is a question of law, which we review de novo
with no presumption of correctness. Button v. Waite, 208 S.W.3d 366, 369 (Tenn. 2006)
(citing State v. Cawood, 134 S.W.3d 159, 163 (Tenn. 2004)). “The concept of subject
matter jurisdiction implicates a court’s power to adjudicate a particular type of case or
                                           -9-
controversy.” Staats v. McKinnon, 206 S.W.3d 532, 541-42 (Tenn. Ct. App. 2006)
(citations omitted). Parties cannot confer subject matter jurisdiction on a court by
appearance, plea, consent, silence, or waiver. Id. at 542 (citations omitted).


                                    IV. DISCUSSION

       Upon further consideration, this court is of the opinion that the Rule 10 application
was improvidently granted and that the matter should be remanded to the trial court for
further proceedings.

       Rule 10(a) of the Tennessee Rules of Appellate Procedure provides that “[a]n
extraordinary appeal may be sought on application and in the discretion of the appellate
court alone of interlocutory orders of a lower court from which an appeal lies to the
Supreme Court, Court of Appeals[,] or Court of Criminal Appeals . . . .” Extraordinary
appeals are only appropriate “(1) if the lower court has so far departed from the accepted
and usual course of judicial proceedings as to require immediate review, or (2) if
necessary for complete determination of the action on appeal as otherwise provided in
[the Rules of Appellate Procedure].” Tenn. R. App. P. 10(a). The Advisory Commission
Comment to Rule 10 denotes: “The circumstances in which review is available . . . are
very narrowly circumscribed to those situations in which the trial court or the
intermediate appellate court has acted in an arbitrary fashion, or as may be necessary to
permit complete appellate review on a later appeal.”

       A Rule 10 extraordinary appeal should only be granted when the challenged ruling
represents a fundamental illegality, fails to proceed according to the essential
requirements of the law, is tantamount to the denial of a party’s day in court, is without
legal authority, is a plain and palpable abuse of discretion, or results in either party losing
a right or interest that may never be recaptured. State v. McKim, 215 S.W.3d 781, 791
(Tenn. 2007) (citing State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980)). Rule 10
appeals are reserved only for extraordinary departures from the accepted and usual course
of judicial proceedings. See, e.g., Jones v. Vasu, 326 S.W.3d 577, 578 (Tenn. Ct. App.
2010). In contrast, a Rule 9 interlocutory appeal may be granted under less egregious
circumstances. See Gilbert v. Wessels, 458 S.W.3d 895, 898 (Tenn. 2014). Such an
appeal may be appropriate when there is a need “to prevent irreparable injury,” “to
prevent needless, expensive, and protracted litigation,” and “to develop a uniform body
of law.” See Tenn. R. App. P. 9(a).

       As noted in Gilbert, appellate courts must exercise restraint in granting Rule 10
appeals. 458 S.W.3d at 898. We “have no authority to unilaterally interrupt a trial
court’s orderly disposition of a case unless the alleged error rises to the level
contemplated by the high standards of Rule 10.” Id. Unless the trial court’s alleged error
qualifies for immediate review under the criteria outlined in Rule 10, we must respect the
                                          - 10 -
trial court’s discretionary decision not to grant permission to appeal under Rule 9 and
refrain from granting a Rule 10 appeal. Those alleged errors not rising to the level
required by Rule 10 can be reviewed in the normal course of an appeal after a final
judgment has been entered. Id.

       This case reveals no extraordinary departure from the accepted and usual course of
judicial proceedings; the trial court adhered to established legal standards. The record
before us establishes that the trial court considered the proper statute, the relevant facts,
and the arguments advanced by the parties. As such, the trial court did not so far depart
from the accepted and usual course of judicial proceedings as to require immediate
review, nor was an extraordinary review necessary for a complete determination of the
action on appeal. Accordingly, because we improvidently granted permission for the
appeal under Rule 10 of the Tennessee Rules of Appellate Procedure, we dismiss the
appeal.

       Tennessee Code Annotated section 36–5–103(c) provides:

              The plaintiff spouse may recover from the defendant spouse,
              and the spouse or other person to whom the custody of the
              child . . . is awarded may recover from the other spouse
              reasonable attorney fees incurred . . . in regard to any suit or
              action concerning the adjudication of the custody or the
              change of custody of any child . . . of the parties, both upon
              the original divorce hearing and at any subsequent hearing,
              which fees may be fixed and allowed by the court, before
              whom such action or proceeding is pending, in the discretion
              of such court.

Tenn. Code Ann. § 36–5–103(c) applies to awards of attorney fees incurred on appeal.
See generally Shofner v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App. 2004)(“Tenn.
Code Ann. § 36–5–103(c) vests in this court the discretionary authority to award these
fees and costs in proper cases.”).

       Exercising our discretion, we conclude that Mother is entitled to an award of
attorney fees incurred on appeal. We remand this case to the trial court to determine the
appropriate amount of attorney fees to which Mother is entitled.


                                   V. CONCLUSION

       The appeal is dismissed and the case is remanded to the trial court for the
enforcement of the trial court’s order directing that the Child be returned to Tennessee
and the determination of Mother’s attorney fees for this appeal. The costs of this appeal
                                          - 11 -
are taxed to the appellant, Vaneet Singh, and his surety, for which execution may issue, if
necessary.


                                                   _________________________________
                                                   JOHN W. MCCLARTY, JUDGE




                                          - 12 -
